On a chilly January day, Lance Armstrong and a coalition of anti-smoking groups joined legislators on the steps of the Capitol to announce that the days of puffing in Texas bars and restaurants would soon be over. A new poll indicated that 68 percent of Texans favored a statewide smoking ban, Armstrong told the crowd. “The first job of government is to protect the people,” he said, “and today, the people of Texas are sending a clear message to their elected representatives: They want protection from secondhand smoke.”
Four months later, as Armstrong competed in the Giro d’Italia bicycle race, the smoking ban bill was pronounced dead. Authored by Democratic Sen. Rodney Ellis of Houston, the legislation would have prohibited smoking in indoor public places, including government offices and bars. At a news conference on May 19, supporters including Ellis and Rep. Myra Crownover, a Denton Republican who authored the companion bill in the House, admitted defeat. In full Senatorial mode, Ellis waxed diplomatic. “Members were acting in good faith and trying to find common ground on a tough issue,” he said. “Myra and I are not bitter because we couldn’t get the votes in the Senate.”
How did a high-profile bill with such widespread public support end up on the scrap heap of failed legislation? Stealth lobbying, Ellis and other advocates later told the Observer. In 2007, when the smoking ban was first floated, lobbyists for tobacco companies were vocal in their opposition, swarming the Capitol and ensuring that the bill was so loaded up with qualifying amendments that it teetered and sank. Ellis ended up pulling the bill back because it had been neutered, exempting bars and allowing broad exemptions for city ordinances already on the books. “I had to withdraw the bill rather than allow it to be gutted,” Ellis said.
This time around, with the tide of public sentiment so strong against them, Big Tobacco’s well-paid minions adopted ninja tactics, lobbying members behind closed doors and over the telephone. “You didn’t see them, but you knew they were there,” said Kristin Voinis, spokeswoman for Smoke Free Texas, a nonprofit group that spearheaded the grassroots push for the ban.
Tobacco companies invested heavily in lobbying during the 2009 session, hiring 40 lobbyists and paying them as much as $2.4 million collectively to kill the ban, according to the Dallas Morning News. It was money well spent. Again and again, Voinis said, advocates would think they were making headway with legislators, only to return to members’ offices later and get an earful of tobacco-industry talking points on individual liberties and the dangers of big government telling private business owners what to do.
One key legislator who apparently changed her mind was Sen. Jane Nelson, a Republican from the Dallas suburb of Flower Mound. In January, Nelson had stood by Armstrong and publicly pledged her support for the smoking ban. As the chairwoman of the Senate Health and Human Services Committee, Nelson was a key ally: Ellis’ bill would have to pass through her committee on its way to the Senate floor.
Supporters were flummoxed when Nelson sat on the bill for two months, refusing to bring it up for committee approval.
Ellis repeatedly begged her to hold a hearing. Nelson finally relented just two weeks before the session ended. Nelson’s office insisted that she was not trying to kill the bill but was waiting for it to pass a House committee first. “It was basically a game of chicken all session,” said a Capitol staffer who worked on the legislation and requested anonymity to avoid angering Nelson.
Nelson would not comment on her role in snuffing the ban. According to the staffer, she wanted Ellis to guarantee that he had the necessary 21 votes in the Senate before it passed through the committee; she didn’t want her fellow Republicans to cast a controversial vote for a bill that might fail. Ellis’ tally showed that he had only 20 votes. A vote for the ban could prove expensive for legislators, who’d risk losing campaign contributions from tobacco interests and affected businesses. A vote against it, on the other hand, could alienate constituents who favored the ban.
Ultimately, neither House members nor Senators had to make that choice: The ban did not come up for a vote in either chamber. Advocates were frustrated but not deterred. Armstrong fired off a defiant message from Italy: “Big tobacco spent millions to kill smoke-free legislation and they got to enough of our legislators to win this round.” But, he wrote, “As we’ve seen in states all over America, it’s just a matter of time before our efforts succeed. We are not intimidated by big tobacco and we will not give up.”
He’s right: Despite its money and its army of lobbyists, Big Tobacco is losing this battle one state at a time. Smoking bans have already passed in 28 states. At the news conference in May, Ellis noted that the governor of North Carolina—the nation’s top tobacco producer—was signing a smoking ban into law that same day.
For now, Texas is left with a crazy quilt of local ordinances. Twenty-eight cities, including Ellis’ hometown of Houston, have adopted smoking bans. Even the Texas Restaurant Association, which lobbied against the legislation in 2007, has switched sides, recognizing that a statewide ban would at least equalize the rules for all restaurants.
Ellis won’t quit. He said he’s confident the smoking ban will pass during the next session, in 2011. Or maybe sooner, during the special session that Gov. Rick Perry is expected to call this year. “If there’s something I can amend it to,” Ellis said, “you can be sure I’ll do it.”