Out of Control Policy Blog

Public Citizen Against the Private Citizen's Property Rights

It is my pleasure to announce that my membership in the vast right-wing conspiracy has recently been made official...my study advancing the concept of regulatory takings reform been singled out by none other than Ralph Nader's Public Citizen as part of a "stealth campaign against taxpayers and the environment." Will the cigar-smoking, back room power brokers be sending me my membership card soon? Or perhaps the instructions for the secret handshake?

In a 16-page propaganda piece designed to undermine the property rights measures on the ballot in Arizona, California, Idaho, and Washington, PC writes:

In April 2006, the far-right Reason Foundation, which promotes libertarian principles and ideas, published a playbook promoting ballot initiatives clothed as a response to the Kelo decision, but that, it planned, would do much more to roll back environmental and land use rules than needed to remedy the harmful effects of the opinion.

In a 64-page report, the foundation began promoting a strategy in which a "Kelo-plus" ballot initiative would offer cover for more insidious "takings" measures. A "Kelo-plus initiative," the report said, "offers a single vehicle to address both physical and regulatory takings at the same time, effectively 'killing two birds with one stone.'" It also capitalizes on the tremendous public and political momentum generated in the aftermath of the Kelo ruling," the report said.

Never mind that I actually framed Kelo-Plus as an option that may or may not be appropriate, depending on the state; the title of that section of my report was actually, "Measure 37 or Kelo-Plus." I'm not exactly sure how that translates to promoting Kelo-Plus as a "cover for more insidious takings measures" (unless you're a statist progressive bent on concocting goofy conspiracy theories, that is).

Let's get the facts straight. The appeal for tying the two issues together rests on several things:

  • The whole "killing two birds with one stone" is exactly that -- the truth is that eminent domain abuse and regulatory takings are THE two biggest reasons for the erosion of private property rights over the last century. If you're truly interested in protecting private property rights in a comprehensive way, then Kelo-Plus makes total sense.
  • Eminent domain abuse and regulatory takings aren't really separate issues; they're two sides of the same coin. The use of the government's police power to adopt regulations not intended to prevent harm, but to confer public benefits (such as open space ordinances, agricultural zoning, etc.), is more appropriately viewed as an exercise of the eminent domain power. The difference, of course, that landowners are not compensated for the impacts of actions taken under the police power, which is the core of the issue. So the real problem is that the distinction between the police power and eminent domain power has become blurred. For a more detailed explanation, see Tim Sandefur's summary of this concept in his recent Goldwater Institute report.
  • The outrage over Kelo opened the door for property rights advocates to bring the issue of regulatory takings -- the far more pervasive threat than eminent domain abuse, but also far more hidden -- to the public's attention. So far from being a "cover," a Kelo-Plus measure is a way to highlight and bring attention to regulatory takings, not cover up the issue. Anyone who knows me knows that I scream about regulatory takings to whomever will listen...why on Earth would I suggest a strategy of concealing the issue? That's just silly.

I really expect no less of Public Citizen though. They need some boogeymen to scare voters and try and taint the ballot measures, as their intellectual defense against them is vapid. That's why practically all of the measure opponents' advertisements and arguments rely on falsehoods and distortions. Once you peel away the layers of deception, their argument basically boils down to one thing: if government actually got a bill for the enormous costs it imposes landowners through regulation, it would be so large that they couldn't pay it. They'd rather have a credit card with no limit and have the bill sent elsewhere.

Contrast this with the position on the other side. The driving concept of a regulatory takings measure is that it is fundamentally unfair to force a minority of private landowners to bear the costs of providing a public benefit. If the public benefits of land use regulation are as worthy as supporters claim, then paying compensation to property owners is merely acknowledging the public value of such benefits and not shifting the cost burden onto a minority. Nothing under these measures would prevent government from regulating; rather, they would merely require government to account for the associated costs. The public should share the costs of providing the things that everyone benefits from rather than forcing a small group to pay for them. It's a simple concept.

But the special interests lined up against these measures have no problem with the status quo. They can't implement their agenda without the aid of government theft and bullying.

The Founding Fathers would be horrified to see the state of property rights in America today. They held property rights as sacred, the foundation of human freedom and dignity. To see them eroded to the point where they are regarded by officials and regulators as priviledges to be dispensed selectively at their whim would be the ultimate insult indeed.

Leonard Gilroy is Director of Government Reform


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