In response to my post questioning the rationality of the D.C. City Council's smoking law that was enacted Thursday, Brooke Oberwetter, who directed the Ban the Ban campaign in the District, offered an excellent comment in which she pointed out that in general, a legislative attempt to achieve a compromise can be viewed as rational policy making. I agree with Brooke's basic point, but I think that in this case, the D.C. smoking law, as enacted, cannot even be viewed as a rational attempt at a compromise.
While I have explained my reasoning in my response to Brooke's excellent comment, I think the issue is important enough to warrant a post of its own.
The Rest of the Story
In general, legislative bodies do tend to try to forge compromises when there are issues in dispute, and a compromise may be viewed as a rational policy approach.
I agree that if the D.C. City Council tried to reach a compromise in terms of the scope of the law's coverage, then that could be viewed as rational.
The problem is that I don't see the 10% provision as having anything to do with a compromise. It is a totally arbitrary criterion that does not inherently limit or control the scope of the law's coverage.
In fact, what it means is that the D.C. City Council specifically has no control over the coverage of the law. Should every bar and restaurant in D.C. decide to start selling cigarette packs with meals and drinks, then NO bars and restaurants in D.C. will be covered. Should no bar or restaurant start or continue selling cigarettes, then EVERY SINGLE bar and restaurant will be 100% smoke-free and it will be a complete smoking ban in all establishments.
My point is simply that the Council has completely relinquished control over the issue. They are, in fact, not regulating secondhand smoke exposure. Instead, they are regulating the requirements for establishments that are in the tobacco sales business.
I don't view that as being rational.
Had the Council simply decided to exempt bars, for example, then I would not view that as being an irrational policy (even though I would disagree with it) and there would be absolutely no danger of any constitutional challenge.
But I think it is only a matter of time before some group somewhere challenges the constitutionality of a law premised on the need to protect the public's health that relinquishes control over the alleged hazard and places control over the regulation of the hazard into the hands of the business owners. It seems to me that there is a lack of inherent logic (and reason) in the approach of declaring secondhand smoke to be a substantial health hazard and then to relinquish all control that the Council has over this hazard.
The bottom line is that the 10% tobacco sales requirement is a completely arbitrary one that is not based on any reason or logic that I can discern. I simply fail to see what the amount of tobacco sales (at those low levels) has to do with the regulation of secondhand smoke. And I don't think it's too much of a stretch to suggest that a judge might also have trouble seeing some rational basis behind this.
If it were an obvious attempt at a compromise, then I think it would be easy to see the reason behind it. And the logic doesn't even have to make sense from a public health perspective. For example, laws that limit smoking to one part of a restaurant (in which the smoke can spread to other parts), don't make sense from a public health perspective, but I have no doubt they would be held up as constitutional because they do represent some reasoned (although poorly reasoned) attempt to accommodate smokers and nonsmokers.
But it is important to note that there is no inherent compromise here, because depending on what bars and restaurants decide to do, it is possible that the law, as enacted, could result in 0% protection from secondhand smoke in these establishments or in 100% protection. And the important point is that the Council has absolutely no control over which it is. They are not limiting or controlling the scope of the law's coverage. They are relinquishing control over its coverage. As such, I don't think it can be viewed as a compromise. Rather, it is most reasonably viewed as a completely arbitrary invocation of the District's police powers.