Clearing the Air

Chapters 1 & 2 | Chapters 3 & 4 | Chapter 5 | Chapters 6, 7 & 8

Chapter 6: Headed to Conference
We were given the choice by House leadership to either ping-pong HB 4163 back and forth between the Senate and House in hopes of achieving concurrence, or to send the bill to a conference committee to work out the differences in the two versions. We believed that in a lame-duck session there would be a great desire to have the issue resolved. We were confident the speaker would appoint two pro-smokefree air lawmakers from the House Democratic caucus. We were confident that whichever Senate Democrat was selected would be a solid pro-smokefree air vote. The unknown, and the leap of faith we decided to take, was whether one of the two Senate Republican conferees would be inclined to resolve the issue once and for all rather than have it hang out in the next year.

There was a seven-day gap between when the House appointed its conferees and the Senate made its appointments. On the day the appointments were made, rumors in the Capitol pointed to the Senate conferees being Sen. Basham, Sen. Alan Sanborn (R-Richmond) and Sen. Jason Allen (R-Traverse City). Our hearts sank. The gamble failed. Both Sen. Sanborn and Sen. Allen had long articulated opposition to a smokefree law.

While some rumors swirling around the Capitol prove to be true, the one circulating on conference committee appointees was close, but wrong. It was a simple mistake involving three senators who could be called Alan. Sen. Alan Cropsey was the third conferee, not Sen. Jason Allen. In our view this was a great stroke of luck. Sen. Cropsey, a veteran Republican lawmaker from DeWitt, was an effective legislator who frequently solved difficult issues and who clearly understood how this issue did not serve the Republicans if it lingered into the 2010 elections.

The House conferees were predictably good for the cause. Rep. Clack was the bill’s sponsor and Rep. Meisner was an avid supporter. The House Republican conferee was Rep. David Hildenbrand of Lowell, who had been an ardent opponent of our bill but was honest and upfront about his position the entire time. We knew where we stood with him.

It became clear at the first hearing that Sen. Cropsey would be the deciding vote whether the bill was enacted this year or not. In his opening statement, Sen. Cropsey said he was convinced the health concerns outweighed his longstanding property rights concerns with the proposed smoking ban. Whether this was politics or not, to have one of the leading conservative lawmakers, one who voted against the legislation, agree that health rights concerns are more important than property rights was a major messaging accomplishment.

The conference committee held a meeting every day during lame duck. The negotiations centered on one issue — how to treat the three Detroit casinos. One proposal included a staggered effective date — a date for casinos and an earlier one for everything else. Another issue that surfaced regularly was how to tie in the Native American casino compacts — could Detroit casinos be exempt until a time when the compacts were renegotiated and then make all Michigan casinos smokefree? 

We were closing in on a potential deal, or at least we thought so, that would have exempted casino floors. One of the national groups in our coalition was willing to put in more resources here, but needed to be reassured the content of the bill would match the goals of the national office. Another dreaded conference call with “national” ensued. The national office did not want an exemption for casinos, believing it would harm the cause nationwide if Michigan were to exempt casinos. The national office wanted us to oppose our own legislation if there were a casino exemption.

We were so close, and again optimistic that the issue would be resolved. We found it hard to believe that lawmakers, after each chamber had voted to pass a version of smokefree legislation, would fail to find a resolution on an issue the public clearly wanted. But we weren’t desperate enough to resolve the issue by taking any deal put on the table. We continued to push for a comprehensive bill, with no exemptions.

Unfortunately in this case, conference committees are not autonomous creatures. They can end up dancing to leadership’s tunes. And so, despite having two votes in conference from the Senate and two from the House for a clean bill, no vote was ever held in the conference committee. The issue would be back the following year, in yet another new legislative session, with new bills and more new legislators.

Chapter 7: Soul Searching
Following our heart-breaking defeat during lame duck, the Campaign had some serious thinking to do and several core questions to answer for 2009. Did we want to continue the fight, with the same leadership in each chamber that clearly did not want a smokefree air law? Did we pursue a hugely expensive ballot initiative for November 2010? Could we give in on certain exemptions to make some legislators happy without ruining the chances of it still passing the Senate?

In addition to our self-reflection, we were also spending a lot of time guessing what the legislature would be doing. Some thought Sen. Bishop and the Senate would introduce a bill with no exemptions and pass it quickly to the House, sticking to a full-ban approach and putting pressure on the House to come up with votes. Others thought neither chamber would want to do anything and would hide from the issue.

Adding to our woes, we had again lost some of our champions due to term limits. Both Reps. Meisner and Clack were gone, and the House Commerce Committee had a new chairman, Rep. Robert Jones, a Democrat from Kalamazoo. For the first time, the entire Campaign leadership began to look seriously at a ballot initiative. We couldn’t avoid it. The internal pressure from advocates fed up with the legislative process was at an all-time high. In addition, the news media were increasingly encouraging the issue to be resolved by the ballot; and lawmakers didn’t seem intent on resolving the issue legislatively.

Tempering the shift to a ballot strategy was the stark reality of the costs for a ballot campaign. The difficulty of raising as much as $10 million, in an economically challenging year when donations to the voluntary health organizations were already drastically lower than normal, could not be ignored. It was an honest concern that we wouldn’t have the money needed to mount a successful campaign, and losing at the ballot could be more devastating in the long term than would another legislative delay.

We strategized about possible allies that could help fund the issue: Windsor casinos (already smokefree) eager to see Detroit go smokefree; Michigan’s Native American casinos also eager to see Detroit go smokefree (to give themselves a perceived competitive advantage); and the natural anti-tobacco groups we knew would arise.

In the end, the campaign developed its own “great compromise,” where we detailed a legislative timeline and determined that if we couldn’t make any strong progress by the end of 2009, we would have no choice but to look at the November 2010 ballot as a strong alternative.

At this point, our coalition was more than 270 organization members strong, with more than 5,000 advocates signed up on our advocacy alert and e-mail list. In addition, the number of smokefree states in the U.S. had grown to 35.

Race to be first
While we spent most of January embroiled in internal debates, we didn’t realize how many House lawmakers were eager to pick up where we had left off and fill the big shoes left by Reps. Clack and Meisner. Many, many in the large freshman class of lawmakers came to the House having either campaigned on our issue or having heard the following from numerous constituents during their door-to-door outreach: “Are you going to help make Michigan smokefree? It’s about time the legislature deals with this issue.”

We started to get wind that multiple lawmakers were going to make bill requests to introduce smokefree legislation. It was important to us that we not only worked with a lawmaker sensitive to our goals, but one who had a realistic chance of leadership moving his or her bill. We met with several extremely interested lawmakers. They included two freshmen eager to join our cause, Rep. Paul Scott, a Grand Blanc Republican, and Rep. Dian Slavens, a Democrat out of suburban Detroit’s Canton Township; a lawmaker who had turned us down previously but was now supportive of our position, Rep. Lee Gonzales; and a new-to-us lawmaker who had solid support from her caucus and peers, Lansing Democrat Rep. Joan Bauer. 

Unbeknownst to us, lawmakers were already making bill requests. Four smokefree air bills were quickly introduced, including one from Detroit lawmaker Rep. Bert Johnson. The first bill came from freshman Scott, and the Democrats quickly referred it to the House Commerce Committee, as had been done the three previous sessions. However, this committee referral was made before committee chairs were named. Johnson had the ear of Dillon and urged the speaker to let him host the issue in House Regulatory Reform, which Johnson was going to chair. Johnson was supportive of smokefree air, but also wanted to protect the Detroit casinos. All bills introduced after Rep. Scott’s bill were referred to the House Regulatory Reform Committee. Based on our vote counts, there could not have been a more difficult committee for us.

To urge House action we needed more pressure, both from our advocates and the news media. We decided to poll again, certain that the action from the previous lame-duck session and the increase in the number of smokefree states since our last poll in January 2008 had increased our overall support among voters. The poll was commissioned by the Campaign, with funding support from the Campaign for Tobacco Free Kids.

In March, EPIC MRA polled 600 Michigan voters on our issue. While we were disappointed that our support had not grown since the last poll, we were still seeing impressive numbers. No other major political issue facing the legislature in 2009, or the previous five years, consistently polled at or near 70 percent support.

Sixty-six percent — two-thirds of those interviewed — favored smokefree workplace legislation. When asked specifically about legislation including making casinos smokefree, 64 percent were in favor of including casinos in the legislation, agreeing that it was only fair that casino employees have the same protection from secondhand smoke on the job as other workers. Less than a third of voters, 30 percent, felt that casinos should be exempt from the law because including them could negatively affect casino business and government revenue.

Rep. Johnson followed much the same approach as Rep. Meisner did in the previous session. He engaged all parties. He allowed every group or individual to have a say. He took his committee on field trips to see casino operations, to see a cigar bar and to visit the pulmonary intensive care unit at a hospital. He spent weeks examining the issue and allowing his committee members to learn as much as possible.

One messaging issue we felt our campaign needed to address was ventilation in casinos. The Detroit casinos had spent significant time during the committee hearings discussing their expensive ventilation systems and assuring lawmakers that patrons were protected from secondhand smoke while gaming in their facilities. We knew this was wrong and needed to be disproved.

We decided to bring back our air-quality testing machine and this time target the Detroit casinos. On April 18, Dr. Ron Davis’s colleague, Amanda Holm, went to the Detroit casinos to help test the air quality. Not surprisingly, the results from that day showed that indoor pollution levels averaged between the three casinos were eight times higher than outdoor air. Detroit TV coverage was exceptional and our campaign experienced another surge in advocates signing up via our website.

In April, House Regulatory Reform approved House Bill 4377, sponsored by Rep. Gonzales, with exemptions for the Detroit casinos, tobacco specialty shops and cigar bars. While we were not happy with the exemptions, we felt we were in the same boat we had been in before — happy that there was movement on our issue and optimistic we could get the changes we wanted through amendments on the House floor or in the Senate.

To keep it interesting, Sen. Tupac Hunter of Detroit, also frustrated by the lack of resolution of this issue and acting on his own without the Campaign’s concurrence, introduced a bill in early May to place the smokefree workplace issue on the 2010 ballot for Michigan voters to consider. Senate Bill 469 would ask state voters to decide the fate of an issue that lawmakers couldn’t, or wouldn’t, deal with. The bill was comprehensive in its definition of workplaces and included restaurants, bars, tobacco specialty shops and casinos.

Hunter’s move put us in an uncomfortable position, although we admired Hunter’s decision. We had complete confidence that Michigan voters would have overwhelmingly approved the issue, but we preferred lawmakers just deal with the issue themselves.

In mid May, two more states enacted smokefree legislation — Wisconsin, our Great Lakes and border neighbor, and North Carolina, the heart of tobacco country. Earlier in the year, Virginia, the home of Philip Morris, passed a smokefree law. Michigan was now one of only 13 states in the country that had not taken action to protect the health of its residents. Lawmakers had been debating the issue for more than 10 years, but had failed to get the job done.

We messaged hard on this — even tobacco states were going smokefree. Michigan lawmakers needed to take notice of the fact that we were being left behind. With our high unemployment, struggling economy, faltering auto sector, high obesity rates and, now, our status as one of a few states still exposing workers to secondhand smoke, we were painting the picture of what legislators were allowing to happen to our great state. Legislators needed to stop debating and take action.

By the end of May, less than a month after it came out of committee, HB 4377 was approved by the full House. The issue had moved much more quickly than in the previous sessions and, unlike last time, we easily cleared the chamber, with more than 75 supporters. While there were amendments offered to exempt bowling alleys, private clubs and the like, none was adopted. Again, the issue of exemptions came down to two — gaming floors of casinos and purveyors of tobacco products.

Again, the budget
Fall 2009 felt a lot like fall 2007. The legislature was moving slowly toward a budget impasse. Smokefree air legislation was still lingering out there, but not complete. It had been months since the House passed the legislation. We could not get lawmakers’ attention when the budget was still all-consuming. So we waited. And waited. Patiently we waited for the budget to be resolved. During times like this we also fought off internal pressure from coalition members who weren’t as patient or as willing to let lawmakers be focused on only the budget. It was another internal struggle to keep coalition members in line with our legislative strategy.

Facebook friends
After Labor Day, we decided it was time to give focus and new tasks to our restless grassroots advocates. The goal was a limited, but intense grassroots campaign. Our plan was to start on October 1 and end six weeks later when the legislature was set to break for deer hunting season, and in time for the American Cancer Society Great American Smokeout in late November.

While the House had passed a bill, it was not the bill we wanted to pass. All of 2009 we focused on House members, telling them that they needed to call the Senate’s bluff. The only way to resolve the issue was for the House to send the Senate a clean bill — no exemptions. We had the votes for such a bill, if only we could get a vote on it.

As Facebook began to dominate the political landscape and lawmakers were rushing to create Facebook pages, we noticed something a bit different about lawmakers’ posts on Facebook. Especially throughout the budget debate, posts were actually being made by the lawmakers themselves. It was not staff-driven. Could this new technology pave the way for our advocates to communicate more directly with lawmakers? We decided that our short grassroots campaign would not only include a social media component but have a major focus on Facebook.

In the end, our Act Now or Forever Hold Your Breath campaign engaged more than 15 powerful organizations from our coalition — each group picking one or two days throughout the six weeks to engage its members. Every day, Monday through Thursday, for six weeks, one group was responsible for rallying advocates to contact lawmakers. Further, we varied the format of communications — letters, calls, e-mails, Facebook and personal visits — so that we employed a different approach each day. Once again our advocates were relentless. If anything, the failure of the legislature to resolve the issue in lame duck the year before had sparked a new anger and insistence — our army would not give up until a bill was signed into law.

It cannot be stated enough how much of a purely organic, grassroots campaign this had become. There was one advocate from Ann Arbor, Kelly Vaughn, who took grassroots advocacy to a whole new level. Kelly is very passionate about smokefree air. She met with her lawmakers. She met with area lawmakers. She reached out to lawmakers on her own. She wanted to breathe clean air and wanted the Michigan Legislature to do something about it. Kelly is of the generation that was plugged into Facebook and social media before the rest of the world understood it. Kelly had decided to start a Facebook group, Support the Smoking Ban in MI, on her own. Kelly’s groups surged to over 12,000 members at one point and dwarfed the “official” Campaign Facebook group.

We recognized early that the only way to be truly successful at Facebook was to bring Kelly, a University of Michigan athletic department employee, into the fold. We needed her to engage her 12,000-strong troops. Fortunately for us, Kelly quickly agreed. One of the American Cancer Society’s top grassroots coordinators, Matt Phelen, worked with Kelly and successfully migrated her Facebook fans to a new fan page to keep them fully engaged during our Act Now campaign.

Chapter 8: The Home Stretch
Much like most areas of the Capitol, the areas outside the House and Senate chambers have black and white floor tiles laid in a checkerboard pattern. Capitol insiders affectionately refer to the area where lobbyists practice their trade as the “black and whites.” Over the course of 2009, the black and whites were the setting for some brief conversations between lobbyists for casinos and cigar bars and their Campaign counterparts on how to reach a compromise and resolve the issue. The conversations never really reached the point where they were meaningful until the Act Now campaign was in full swing.

Part of the reason the opposition forces wanted to talk, we believe, was the intense pressure the speaker was under from members of his own caucus. For many, particularly the first-term women in the House Democratic Caucus, the lack of action on a smoking ban was a major reason and symbol for why Lansing did not work. It was described to us that if the Senate did not act in a reasonable time period on the bill with casino and cigar bar exemptions, the speaker would hold a vote on a clean bill and send that over to the Senate. The Act Now campaign included a major focus on the House members — to ensure there would be 56 votes for a clean bill.

In the course of a series of more intense meetings, the casino lobbyists agreed to a compromise. The compromise was that the gaming floors of the Detroit casinos would allow smoking, and cigar bars/tobacco shops, as we defined them, would allow smoking. That was it. At one point in time, tobacco shops were in our model smokefree bill, so there was no problem there for our group. There were already a handful of states that exempted cigar bars, and if the definitions were strong, we could live with this one, too. Casino floors, as always, presented the tricky point. Exempting them gained very little in the Senate, but the House Detroit delegation would support the bill if casinos were exempt. And a cigar bar exemption gave us the added margin we needed in the House.

It was a hard compromise for many members of our coalition — those who wanted to hold out for no exemptions. The alternative to the compromise was trying the same approach from the year before and rolling the dice we would get a different outcome from Dillon and the House. The other alternative was deciding once and for all that we would go the ballot. We had always pushed to include all workers — that no job would be prioritized over others in the name of health (or political expediency). But it would be as big or bigger gamble to start over again in 2011 with new legislative leaders in both chambers and a new governor, and not knowing where any of them sat on our issue.

The alternatives were judged as too risky. While the two exemptions were hard for some to swallow, the decision was made to support the compromise that so many other groups had come together to make happen.

Red and greens
It was great that the lobbyists had reached agreement. The only problem was that lobbyists don’t get to cast votes. And not all of the lobbyists were in agreement. The tobacco interests — led by Reynolds Tobacco — were still opposed. The restaurant and licensed beverage groups were still opposed. Our loosely-held agreement needed to find a champion in the Senate — one in the Senate Republican Caucus. We needed one who was not already outspoken on this issue.

The first day back from deer season, casino lobbyists and our coalition members met with Sen. Ron Jelinek from Three Oaks to find out where he stood. He indicated he was willing to support the compromise reached by the lobbyists, but he was not asked specifically at this meeting to sponsor the compromise. A few hours later, the cigar bar lobbyist and one of the casino lobbyists went back to ask him if he would sponsor the compromise, and he agreed. All we needed to provide him was the revised bill language and we were off to the races.

Now we waited for the bill to come up. The few days that went by before the vote seemed like an eternity. We continued to meet with senators to ensure there would be solid support for this compromise, while at the same time keeping our friends in the House informed and ready to move if the Senate did not act. At the end of every House session from November 1 until the day the Senate voted, Rep. Bauer would announce a meeting of the smokefree caucus. Many times, it was Rep. Bauer and two or three other lawmakers, but we wanted to give the impression that the caucus was meeting regularly and plotting its strategy. Both Speaker Dillon and Majority Leader Bishop made comments to the press that finalizing the smokefree air issue was something they wanted to accomplish before Christmas.

On December 9, the Senate finally took action. It adopted the Jelinek compromise legislation, but not without some hoopla and debate. Tensions ran high on the black and whites between lobbyists and lobbyists, and between lobbyists and lawmakers. Of course, there were amendments offered. “Permit to Kill” was back again. An exemption-free bill was offered, too. But our compromise held firm, and the Senate voted with nearly the same numbers as before — nine Republicans joined 15 Democrats.

In a telling statement on just how much the issue resonated with the public, the upper chamber’s newest member, Sen. Mike Nofs, a Republican from Battle Creek, delivered a speech on how he had opposed the issue in the past but was ready to cast a “yes” vote after hearing about this issue repeatedly during his special election campaign just a month before. And Sen. Jelinek validated the Campaign’s early decision to make coalition-building a priority, when he took the Senate floor and rattled off only a few of the nearly 300 groups supporting the cause.

In a startling move, rumors began to swirl that the House intended to take up the bill the same day. We were hopeful the compromise language would be as successful there as it had been in the Senate. Media inquiries were building with rapid momentum and the realization started to set in that after nearly five years, the issue might finally be coming to an end. Victory was in sight.

The wait, although less than two hours, seemed like two days. There was a chance Dillon wouldn’t put it up for a vote or that we would have to spend another week convincing House lawmakers of the importance of our issue and the need to finalize it once and for all.

All we needed was a concurrence vote — with no more amendments or games playing — and around 4 p.m. the legislature delivered one of its best Christmas gifts to Michigan residents in the form of a final smokefree air bill. The legislation had completed its years-long, twisted and torturous journey through the Michigan Legislature! The Campaign celebrated later that afternoon at the Harrison Roadhouse in East Lansing, which had already gone smokefree.

We still needed the governor’s signature to transform the legislation into law. But that had not been in question since she went public in her earlier State of the State address. In honor of the importance of the occasion, and the strong media and legislator interest, Gov. Granholm held a “live” bill signing ceremony on December 18 at the recently opened and smokefree Michigan Brewing Company in downtown Lansing.

It was surreal to witness the truly historic event. We joked that 2010 would bring an identity crisis — if we weren’t advocating for smokefree air, what would we be fighting for? Of course, we’ve answered that question each in our own way as we continue to work on advancing other projects.

We credit our opposition for holding off our victory for five years. They were tenacious opponents. We never once seriously doubted, not really, Michigan would go smokefree eventually. It took us longer than we first planned, but in the end we credit our success to the literally thousands of advocates around the state who never gave up. We joked throughout that we had People Power, but it was no joke. When one of our advocacy alerts went out, we knew lawmakers’ offices would receive hundreds of e-mails and phone calls over the next few days. Despite many challenges, our people never gave up.

The Campaign is now transitioning its work to the Michigan Department of Community Health, which is beginning an education campaign for the entire state. The new law’s effective date, May 1, is only a few weeks away, and we’re optimistic Michigan will make an exciting and smooth transition to become the 38th smokefree state in the United States — in law and practice.

Peter Ruddell has been an attorney and lobbyist for Wiener Associates in Lansing since 2001 and previously was a legislative aide in the House and Senate, including service as executive assistant to the Senate majority leader. Emily Gerkin Palsrok is managing director of public affairs for John Bailey & Associates (a Lambert Edwards & Associates company) that she joined in 2003. She served previously as a press aide to the House speaker.

Chapters 1 & 2 | Chapters 3 & 4 | Chapters 5 | Chapters 6, 7, & 8
For more commentary see Editor’s Notes