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 November 2005 How motorcyclists won the right to feel the wind in their hair — and why drivers still have to buckle up. by Jacob Sullum (Reason Magazine ) On a Monday afternoon in June 1999, Richard Quigley was riding his Harley near Capitola, California, when a local police officer pulled him over for violating the state's helmet law. There ensued a half-hour debate with the officer and his supervisor about whether Quigley's headgear — a trucker's cap emblazoned with "United States Freedom Fighter" into which he had inserted a rigid plastic disc — qualified as a "safety helmet." Quigley, a 61-year-old with a ponytail and a ZZ Top-style beard who directs Bikers of Lesser Tolerance of California and once ran for Congress on the Libertarian ticket, later called the encounter "interesting, informative and fun!" [A transcript and audio recording of the traffic stop can be accessed by clicking here.] Richard Quigley's idea of fun, whether riding a motorcycle without a helmet or arguing with the police about it, may not be the same as yours or mine. But his enthusiasm for fighting California's helmet law, a battle in which he has been engaged for [thirteen] years "on the streets and in the courts," helps explain a public policy puzzle: While almost every state requires adults to wear seat belts, most do not require them to wear motorcycle helmets, even though riding a motorcycle is much more dangerous than driving a car. The story behind this anomaly is both inspiring and discouraging — inspiring because it shows that a highly motivated minority can make a successful stand for freedom, discouraging because it shows that politics is more important than principle in determining why certain laws aimed at protecting people from their own risky behavior become widely accepted while others remain controversial. In 2003 there were 5.4 million registered motorcycles in the U.S., compared to about 136 million registered cars. Despite their relatively small numbers, motorcyclists have been far more effective than drivers at resisting traffic safety paternalism. After some initial grumbling, most motorists got used to buckling up and are now unlikely to put up much resistance as states move toward primary enforcement, allowing police to pull people over for not wearing seat belts (as opposed to issuing citations after stopping them for other reasons). By contrast, going back to the 1971 founding of the American Brotherhood Against Totalitarian Enactments (ABATE) by the staff of Easyriders magazine, motorcyclists have been willing to invest the time, effort, and money required to fight helmet laws. Call it the Quigley Factor. "Motorcyclists Believe in Freedom" "Motorcyclists believe in freedom, and we attack anything that is attacking our freedom," explains Robert Fletcher, coordinator of the Texas ABATE Confederation. "Helmet laws go against the grain of everything this country stands for," says New York Myke, ABATE of California's state director and owner of San Diego Harley Davidson. Just as abortion rights groups insist they do not favor abortion, motorcyclist groups are at pains to make it clear they do not oppose helmets. Jeff Hennie, vice president for government relations at the D.C.-based Motorcycle Riders Foundation, says, "What we're advocating is freedom of choice. . . . It should be the decision of the rider whether to put on extra safety equipment." He describes the attitude of helmet law opponents this way: "Let me decide what is right for me, instead of the government jamming regulations down my throat." During the last few decades motorcycle activists have been remarkably successful in bringing that message to state legislators and members of Congress. In 1976, responding mainly to state resentment of federal mandates, Congress repealed legislation enacted in 1967 that had made federal highway funds contingent on adoption of helmet laws. At that point every state but California had passed a helmet law (although the Illinois law had been overturned by the state Supreme Court). Freed of the federal requirement, 27 states repealed their helmet laws or limited their coverage to minors (usually meaning riders under 18) during the next few years. Some of those states reinstated helmet requirements for adults in the 1980s and early '90s, including a few that acted after Congress again started tying highway funds to helmet laws in 1991. In 1995, largely in response to lobbying by the Motorcycle Riders Foundation, Congress again eliminated the helmet law mandate, and since then half a dozen states have repealed helmet requirements for adults (one of which, Louisiana, restored universal coverage last year). As of July 2005, 30 states still allowed adult motorcyclists the freedom to decide for themselves what, if anything, to wear on their heads. But the insurance industry, safety groups, and the National Highway Traffic Safety Administration (NHTSA) continue to push universal helmet laws, which are periodically introduced by legislators even in states, such as Illinois and Minnesota, that have long allowed adults to ride without a helmet. Meanwhile, helmet law opponents are lobbying for repeal in California, West Virginia, and elsewhere. To block or repeal helmet laws, activists must convince legislators to defy public opinion. While a 1978 Louis Harris poll found that 57 percent of Americans thought motorcyclists should be free to ride without helmets, a 2001 survey by the same organization found that 81 percent thought helmets should be required. Add to that the fact that the fatality rate per mile traveled is more than 25 times as high for motorcycles as it is for cars, and the success of helmet law opponents is even more impressive. The main argument they've had to counter also plays a conspicuous role in debates over government efforts to discourage risky habits such as smoking, drinking, and overeating. As a 1991 report from the General Accounting Office put it, "society bears the cost, through tax-supported programs as well as insurance premiums, for the additional deaths and serious injuries resulting when motorcycle riders do not use helmets." The courts have almost uniformly approved this alarmingly open-ended rationale for regulation as part of the police power. Having failed in the courts, helmet law opponents have fended off the "social cost" argument in state legislatures partly by noting that taxpayer expenses associated with injuries that might have been prevented by motorcycle helmets do not amount to much. Although riding a motorcycle is much riskier than driving a car, helmets are considerably less effective at preventing injuries than seat belts are. As NHTSA noted in a 1996 report to Congress, "Helmets cannot protect the rider from most types of injuries." Based on accident data from seven states, NHTSA estimated that motorists involved in crashes who wore seat belts were 20 percent less likely to be injured and 60 percent less likely to be killed than motorists who didn't. The figures for motorcyclists who wore helmets were 9 percent and 35 percent, respectively. The lower rates are applied to a much smaller population, yielding estimates of lives saved, injuries prevented, and costs avoided that are far less impressive than the ones for seat belts, especially at the state level. NHTSA's numbers indicate that a universal helmet law would prevent about a dozen fatalities a year in Minnesota, for example. As Robert Illingworth of the Minnesota Motorcycle Riders Association bluntly put it in a 1992 interview with the Minneapolis Star Tribune, "We're talking about an insignificant amount of money and an insignificant amount of carnage." "A Case of Not-So-Subtle Political Intimidation" Even these modest projections are open to question. While NHTSA makes much of increased fatalities after states stop forcing adults to wear helmets, some of the additional deaths may be due to increased riding. Helmet law opponents argue that lifting the requirement makes riding more convenient, comfortable, and enjoyable, which encourages current riders to use their bikes more and spurs new registrations, many by motorcyclists who may be more prone to accidents because they are inexperienced or have not ridden in years. A NHTSA study released in August illustrates the uncertainty about the impact of helmet laws. NHTSA found that motorcycle helmet use in Florida fell by about 50 percent after the state legislature repealed the requirement for riders 21 and older. Fatalities per 10,000 registered motorcycles in 2001 and 2002, the two years after the new law took effect, were 21 percent higher than in 1998 and 1999, the two years before the change. Most of the additional deaths after 2000 cannot be attributed to the legal change, since the national motorcycle fatality rate rose by 13 percent during the same period, possibly due to an increase in riders with little experience and in older motorcyclists with slower response times. And while NHTSA took into account the 33 percent increase in registrations that Florida saw after the helmet law was changed, it does not have reliable state-level data for miles ridden, so it could not determine whether people who already had motorcycles started using them more. The bottom line is that decreased helmet use may well have contributed to the rise in fatalities, but it's not clear to what extent. The effect certainly was not as dramatic as implied by press reports, which focused on raw numbers instead of rates, downplayed the national trend, and gave short shrift to other possible contributing factors. In addition to questioning the effectiveness of helmet laws, motorcycle activists sometimes suggest (in an argument that belies their professed agnosticism on the question of whether it's smart to wear a helmet) that helmets make accidents more likely because they increase fatigue and impair hearing, peripheral vision, and awareness of air pressure changes. Once an accident occurs, they argue, the added weight increases the risk of neck and spine injuries. James Baxter, president of the National Motorists Association and a former lobbyist on motorcycle issues, says the arguments suggesting that helmet laws cause injuries "have never been too well documented," but they "provided enough of an excuse for some legislators who wanted to get out from under the issue." Another important factor that helped helmet law opponents was the decision by motorcycle manufacturers to stay out of the fight. Although a 2004 NHTSA pamphlet lists the Motorcycle Industry Council as a supporter of "universal motorcycle helmet laws," a spokesman for the group, Mike Mount, says it encourages motorcyclists to wear helmets but takes no position on whether they should be legally required to do so. "They are cowed into silence," says Chuck Hurley, executive director of Mothers Against Drunk Driving (MADD), who until this year ran the National Safety Council's Air Bag & Seat Belt Safety Campaign. "The most you'll get out of them is that helmets are a good idea." If motorcycle manufacturers worry about antagonizing their customers, legislators worry about provoking single-issue voters with long memories. The key to resisting motorcycle helmet laws was convincing legislators they would pay at the polls for trying to force helmets onto adults. The laws' opponents did so in ways both dramatic and mundane. They rode into state capitals, thousands at a time, to protest existing laws or forestall new ones. They packed legislative hearing rooms. They met with legislators, wrote letters, and got involved in party politics. They campaigned for politicians who supported the right to ride without a helmet and against politicians who didn't. The Minnesota Motorcycle Riders Foundation acquired enough clout to elicit a 1990 pledge from Gov. Arne Carlson to veto any bill extending the state's helmet requirement to adults. A couple of years later, a state legislator who had sponsored an unsuccessful helmet bill complained to the Minneapolis Star Tribune: "It's a case of not-so-subtle political intimidation. These [motorcyclists] are people who really feel negatively about something. They are the ones who'll get out and work very hard against you in your district and bad-mouth you." Each year in Texas, where the legislature freed riders 21 or older from the state's helmet requirement in 1997, Texas ABATE brings several thousand riders in motorcycle attire to the state Capitol in Austin, where they walk the halls, knock on doors, and explain their point of view. Before 2000, when the Florida legislature narrowed the state's helmet law, ABATE of Florida members would ride into Tallahassee bareheaded, with a pre-arranged police escort, and ride out wearing helmets. "It was very orderly," says James "Doc" Reichenbach, the group's president. "This was done very professionally." The example of Florida, where the helmet requirement for adults was in effect for more than three decades, suggests the importance of another trait: persistence. Opponents of helmet laws across the country "just kept pounding away at this issue," says Baxter. "I think a lot of legislators just felt it wasn't worth the trouble to them personally to get in these people's faces and have them camping on their doorstep, working against them in elections, supporting their opponents." Buckle Up and Shut Up As Melissa Savage, an analyst with the National Conference of State Legislatures, told the Chicago Tribune in 2003, "You don't see anything like this sort of well-organized opposition to seat-belt laws." In response to the first state law requiring adults to buckle up, which was approved by New York in 1984, a few defiant motorists wore T-shirts with seat belt straps sewn into them to create the illusion that they were complying. Others vented their objections in angry letters to legislators and Gov. Mario Cuomo, who dismissed them, in a 1985 interview with the Los Angeles Times, as "NRA hunters who drink beer, don't vote, and lie to their wives about where they were all weekend." Ballot initiatives, later reversed by state legislators, temporarily repealed seat belt laws in Massachusetts, Nebraska, and North Dakota. But generally speaking, says the National Motorists Association's Baxter, "there was no strong opposition. The legislators did not feel they would be affected by the consequences of their vote. There was no downside." When the New York law was passed, the idea of fining people for riding unbelted was controversial. A 1982 Gallup survey found that 75 percent of Americans opposed such laws, and a Gallup survey conducted two years later, shortly after New York's law was approved, found 65 percent were still against the idea. But the swing in public opinion continued as more states adopted seat belt laws, culminating with Maine in 1995. Today every state except New Hampshire requires adults to wear seat belts, and polls indicate a large majority of the public not only supports such laws but favors primary enforcement, currently permitted in only 20 states and D.C. One reason for the nearly complete triumph of seat belt laws is the numbers cited to support them. NHTSA estimates that seat belt laws save thousands of lives each year, compared to a few hundred that could be saved if every state had a universal helmet law. "Those numbers are just so much larger than they are related to motorcycles that they get [legislators'] attention," says John Ulczycki, transportation safety director at the National Safety Council. The people wielding the numbers have also made a difference. In contrast to the motorcycle industry's stance on helmets, automakers played an early and conspicuous role in the debate over seat belt laws, which they began pushing in 1983 as an alternative to the air bags the federal government was threatening to require. That strategy took on a new urgency in 1984, when Secretary of Transportation Elizabeth Dole said the federal air bag mandate would begin to take effect in 1986 but would be lifted if seat belt laws covering at least two-thirds of the U.S. population had been passed by April 1989. (As with the drinking age, which every state has raised to 21 because of a 1984 law that threatened to cut off highway funding if they didn't, the supposedly federalist Reagan administration did not hesitate to impose its preferred traffic safety policies on the states through indirect means.) The auto industry set up a lobby group, Traffic Safety Now, and invested some $100 million to push seat belt laws in the hope of meeting Dole's deadline. Insurance companies also lobbied for seat belt laws, but they did not want the air bag mandate lifted. Ultimately the insurers got what they wanted: mandatory seat belts and mandatory air bags. Although seat belt laws covering more than two-thirds of Americans were passed by May 1986, the laws did not meet Dole's specifications, which included primary enforcement and a minimum fine of $25. In a 1986 ruling, the U.S. Court of Appeals for the D.C. Circuit upheld Dole's authority to issue the conditional air bag mandate but noted that "none of these [seat belt] laws . . . apparently complies with the secretary's specific requirements." Although Traffic Safety Now no longer exists, the auto industry supports organizations such as the National Safety Council that lobby for primary enforcement of seat belt laws. Widespread seat belt use helps reduce automakers' liability for car accident injuries and deaths, including those involving air bags, which can be especially dangerous when used without belts. Insurers, always looking for ways to reduce claims, likewise support primary enforcement (which the Insurance Institute for Highway Safety hopefully calls "standard enforcement") and fund groups such as Advocates for Highway and Auto Safety. As states move toward primary enforcement (which the transportation bill signed by President Bush in August encourages them to do with a promise of extra highway money), seat belt laws may arouse more resentment and concern, especially since traffic stops can lead to further hassles, such as interrogation and examinations by drug-sniffing dogs. Fear of racially tinged police harassment was the main reason New Jersey, the second state to adopt a seat belt law, did not follow New York's lead in allowing primary enforcement, and most states copied the New Jersey model. "Do I think racial profiling is an issue?" says MADD's Chuck Hurley, who lobbied for stricter seat belt laws when he worked at the National Safety Council. "Yes, I do." But Hurley doubts primary enforcement of seat belt laws will noticeably worsen the problem, and he argues that it makes sense as a matter of consistency: If you can be pulled over for a broken tail light, why not for failing to buckle up? One answer is that the broken tail light poses a potential hazard to others, while the unbuckled seat belt does not. But unless they want to repeal existing seat belt requirements, says Hurley, politicians who oppose primary enforcement are left to argue, rather implausibly, that it's "the Maginot Line between enough government and too much government." It does seem unlikely that motorists who have become accustomed to wearing seat belts during the last two decades will suddenly rebel when enforcement becomes stricter. The national seat belt use rate (based on daytime surveys of drivers and front-seat passengers) gradually rose from less than 15 percent in 1984 to 80 percent in 2004. A desire to comply with the law and fear of fines no doubt had much to do with that trend, as did publicity about the potentially life-saving benefits of buckling up. Motorists who developed the habit as children copying their parents may not give any thought to the legal requirement, let alone harbor moral objections to it. "We're Passionate About Our Motorcycles" Which brings us back to the Quigley Factor. Why do motorcyclists seem to care so much more about helmet laws than drivers care about seat belt laws, when the underlying principle is the same? Motorcyclists may have been quicker to recognize the importance of the principle because riding a motorcycle is much more dangerous than most other modes of transportation and forms of recreation. If the government can save lives and taxpayer money by requiring helmets, it could save even more by banning motorcycles altogether. The National Motorists Association's Baxter suggests that motorcyclists' consciousness of their minority status also fed their determination to resist helmet laws. "They knew that if they didn't directly get involved, nobody else was going to," he says. The way helmet laws are enforced tends to confirm motorcyclists' sense of themselves as a picked-on minority. To begin with, police in states that require adults to use helmets have the authority to stop a motorcyclist simply for failing to wear one, while police in most states still need some other reason to stop a motorist before they can cite him for not buckling up. Even in states with primary seat belt enforcement, a helmetless motorcyclist is more conspicuous than an unbuckled motorist, making him more vulnerable to traffic stops. "The police really don't spot the guy not wearing a seat belt as much as a guy not wearing a helmet," says Texas ABATE's Fletcher. "You can see [the helmetless motorcyclist] three blocks away." Because he cannot credibly attribute his noncompliance to forgetfulness, says Baxter, "a motorcyclist who doesn't wear a helmet is a direct affront to the enforcement community," which makes a stop even likelier and raises the potential for a hostile encounter. And once he is stopped, a motorcyclist may be forced to park his vehicle and walk, unlike an unbelted driver, who can simply buckle up and continue on his way after getting a warning or a ticket. Another reason helmet laws provoke more resistance than seat belt laws is the comfort factor: While buckling up is relatively painless for most people, wearing a motorcycle helmet that weighs a few pounds and covers most of your head can be tiring and sweaty. "If it's really hot, I absolutely don't wear one," says ABATE of Florida's Reichenbach. "You sit at a stoplight, especially in Florida, you're sitting there in 100 percent humidity, and the sun is beating down on you, and that heat's coming up off the road, which is like 140, 150 degrees. . . . We've had people literally pass out at stoplights wearing helmets." The view of helmets as confining and stifling meshes with the sentiment that forcing people to wear them ruins what is for many riders a visceral experience of freedom. "We're passionate about our motorcycles," says ABATE of California's Myke. "This is something that's more of a way of life than a hobby or a sport. It really goes to the core of our being. . . . Riding a motorcycle is my celebration of freedom." Few motorists feel the same way about driving, which for most of us is a workaday means of getting around, not an important part of our identities. Hennie, head of the Motorcycle Riders Foundation, says it's hard for the uninitiated to understand how a method of transportation could acquire so much meaning. "If you've never ridden a motorcycle," he says, "there's no way to describe the feeling of freedom. It's got to be the next best thing to being able to fly. When you start putting restrictions on that freedom, people take it personally." In the final analysis, not enough people took seat belt laws personally. For the most part, whatever objections they harbored were overcome by force of law and force of habit. By contrast, substantial numbers of motorcyclists have complained loudly, conspicuously, and persistently about helmet laws for more than three decades. "Apparently," says the National Safety Council's Ulczycki, "legislators are easily convinced that the perceived rights of motorcyclists to injure themselves are more important than the public good." Aside from the tendentious definition of "the public good," this gloss is misleading on two counts: Resistance to helmet laws hasn't been easy, and it hasn't necessarily involved convincing legislators of anything but the motorcyclists' determination. Politicians didn't have to understand their passion to respect it. And therein lies a lesson for the world's busybodies and petty tyrants. Senior Editor Jacob Sullum is a syndicated columnist and the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin). |