Planned Confusion – #10

Note: This is part of a series. Last week, I wrote about the torrent of look-alike initiatives in the Northwest—933 in Washington; 154 in Montana; and “This House is My Home” in Idaho—and I pointed out their eerie similarity to one another.

All three Northwest property initiatives lead off with booming rhetoric about abuses of eminent domain. In reality, however, the initiatives are about an entirely different issue (one that I’ll describe in a moment). And all three measures use the same bait-and-switch tactic to mislead to voters.

Why would the initiatives all do the same thing? Could it be part of a coordinated national strategy?

In a recent how-to manual, helpfully subtitled: “Exporting Oregon’s Measure 37 to Other States,” the Reason Foundation, a pro-business think-tank based in Los Angeles, laid out the strategy: confuse voters.

First, some history.

In 2005, a divided US Supreme Court ruled that governments can use the power of eminent domain to seize property and turn it over to a private party for economic development. The case, Kelo v. City of New London, enlarged the role of eminent domain beyond its traditional use as a tool for building infrastructure, such as roads, that sometimes requires cutting across private property. (Governments must, of course, compensate property owners for seized property.)

Predictably, Kelo upset people, especially people in poor communities, who worried that governments would abuse their power to enrich private developers. A number of states quickly passed legislation to prevent Kelo-style eminent domain. Washington, however, was not among these states because—and this is important for I-933—it is already prohibited by the state constitution.

Kelo also had another side effect. It provided a political smokescreen for developers and speculators to pass legislation that they had long dreamed of. If passing a law like Oregon’s Measure 37—a pay-or-waive scheme that we’ve studied here–was politically infeasible, Kelo was the perfect Trojan horse.

The Reason Foundation argues for using concern about Kelo to kill “two birds with one stone”: conceal a regulatory takings measure (which few understand) beneath the facade of Kelo-style eminent domain legislation. That Trojan horse strategy, according to Reason, “capitalizes on the tremendous public and political momentum generated in the aftermath of the Kelo ruling to enhance the protection of private property rights.”

And by “enhance the protection,” Reason means Measure 37 mimicry. Reason is promoting pay-or-waive schemes—laws that force taxpayers to pay property owners to obey certain laws or else waive the laws for them.

Somewhat ironically, the Reason Foundation accidentally makes clear that Washington’s I-933 is unconstitutional (and perhaps other states’ initiatives too). Eminent domain and regulatory takings are two separate issues, according to Reason (and they’re right about that), which should invalidate I-933. Either: 1) I-933 has two subjects, and it therefore runs afoul of the “single subject” rule, a gaff that has overturned other initiatives; or 2) I-933 has only a single subject (regulatory takings) and it therefore intentionally misleads voters by trumpeting Kelo-style eminent domain in the first section—already prohibited by the state constitution—another sin that requires invalidation.

Reason goes on to diagram a rather cynical strategy for passing pay-or-waive schemes in the states. Put a farm group up front, they say, because “rural, agricultural-based organizations tend to elicit a sympathetic reaction from voters… invoke nostalgia for earlier, simpler times.”

Who is leading the charge on I-933 in Washington? You guessed it: the Farm Bureau, an organization that despite its name is more insurancecompany than agricultural agency.

And keep the developers out of the limelight, Reason reminds: “…avoid opposition claims that homebuilders are less interested in protecting citizens’ property rights than in reaping financial rewards that benefit their industry.”

Where is the pro-property rights Building Industry Association of Washington (BIAW) on I-933? Nowhere to be seen. BIAW is aggressive enough about property to sue over the recent orca endangered species listing, but they don’t want to tarnish I-933 with their show-me-the-money reputation.

There’s a legitimate debate to be had about eminent domain and regulatory takings. But using outrage over eminent domain to disguise a completely different issue—one that could be a poison pill for local communities, real farmers, and taxpayers–is simply dishonest.