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Ten states pass anti-Kelo referendum initiatives:

During this fall's elections, voters in twelve states considered anti-Kelo referendum initiatives that sought to ban or curtail the condemnation of private property in order to promote "economic development." Ten of the twelve passed, all by lopsided margins ranging from 55% to 86% of the vote. For a complete list, see here.

The only two anti-Kelo initiatives that failed were proposals in California and Idaho that were tied to complex and highly controversial "regulatory takings" proposals which would have required the government to compensate landowners whenever the value of their property is reduced by various types of government regulations; a stand-alone regulatory takings initiative was also defeated in the state of Washington. Tying anti-Kelo referenda to the much less popular regulatory takings referenda has turned out to be a serious political mistake.

More importantly, of the ten anti-Kelo initiatives that passed, at least six (Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and possibly seven (counting Michigan) are well enough worded to provide strong protection to property owners that would succeed in banning all or most economic development takings in those states. This is a much better batting average than that of post-Kelo reforms enacted by state legislatures, most of which tend to provide little or no protection for property owners (see, e.g., my analysis here, here, and here, and Tim Sandefur's excellent article on the subject).

Why are the anti-Kelo referendum initiatives so much more effective than most of their legislative cousins? I suspect because the former are usually drafted by property rights activists rather than by state legislators. As I discuss in more detail in the posts linked above, politicians often have incentives to give voters the impression that they are "reforming" eminent domain without actually doing so. Activist groups have few if any such incentives and the reforms they draft are therefore likely to have fewer loopholes and be more effective in eliminating economic development takings.

If time permits, I hope to produce a more detailed summary of the state of post-Kelo reform soon.

Mho (mail):
Tying anti-Kelo referenda to the much less popular regulatory takings referenda has turned out to be a serious political mistake.

I disagree. The regulatory takings clauses were well worth the effort to sound out politically. It would have been a shame not to try. If we only went with the safe in politics, worthwhile reforms would never get raised, debated, and better understood. A Kelo-only referendum can always pass the next time around.
11.8.2006 9:56am
Ilya Somin:
I disagree. The regulatory takings clauses were well worth the effort to sound out politically.... A Kelo-only referendum can always pass the next time around.


I'm not opposed to trying them - as separate ballot questions. But I see no reason why they should be allowed to take down anti-Kelo reforms with them. "Next time" may be too late, because public attention is likely to move on to other issues, and activist groups may be unable or unwilling to put up the time and money necessary to get new property rights initiatives on the ballot.
11.8.2006 10:03am
Fub:
Ilya Somin wrote:
The only two anti-Kelo initiatives that failed were proposals in California and Idaho that were tied to complex and highly controversial "regulatory takings" proposals...
Just an observation on the campaign advertising here. I turned on the TV at top of the hour several times last week just to see the trend of general campaign adverts. The only ads on CA's prop 90 were in opposition. They bludgeoned the regulatory takings issues without ever mentioning the anti-Kelo provisions or the substance of the takings compensation issues. They spun the message to something like "Greedy corporate landowners will hold the government hostage with 12,000 words of complicated laws you can never possibly understand." The sponsors were astroturf "homeowners" groups. It was quite a hatchet job. I'm surprised prop 90 did as well as it did.
11.8.2006 10:38am
Timothy Sandefur (mail) (www):
The Proposition 90 campaign produced virtually nothing. There were no rallies, no television commercials, and very little else. I did hear one radio commercial on a Los Angeles radio station. (Los Angeles returns were much more neck-and-neck than in, say, San Francisco, where voters were 2/3rds against.) Evidently the campaign produced a commercial, but it never aired. For more, check out my PLF On Eminent Domain blog.
11.8.2006 10:44am
buddingeconomist:
I'm so glad to hear this. Sadly, all the minimum wage hikes passed. Win some, lose some I guess.
11.8.2006 10:44am
Kevin P. (mail):
California Proposition 90 lost by only 48 - 52%, without much significant advocacy. I suspect that with better organized support, it could be passed without rewriting the next time around.
11.8.2006 10:53am
EL SL:
Fub,
The "12,000 words of complicated laws you can never possibly understand" rhetoric was brought to us by the No on 87 campaign, not the No on 90 campaign. The No on 90 campaign featured the "taxpayer trap" language.

Kevin P,
I would be very surprised if the proposition were tried again without re-writing. I'd expect the anti-Kelo provisions to pass easily on their own.

From what I saw, the advertising on 90 went something like this:

Pro: Voting yes on 90 will stop government from being able to take your land to turn it into a strip mall!

Con: Careful, this proposition will do much more than what they're saying. It will force government to pay landowners to compensate for any legislation that affects their property value, and they'll have to raise taxes to afford this. It's a taxpayer trap!

Pro: ___________.

The con side concentrated on the regulatory takings provisions, not on the anti-Kelo measures. The pro side didn't offer a persuasive argument why they thought (a) the regulatory takings language was a good thing, and (b) why it should be included with the anti-Kelo measure. This isn't just a question of the number of ads that were being run; it also reflects the content of those ads. It looked like the pro side was trying to slip one past voters.
11.8.2006 11:53am
Fub:
EL SL wrote:
Fub,
The "12,000 words of complicated laws you can never possibly understand" rhetoric was brought to us by the No on 87 campaign, not the No on 90 campaign. The No on 90 campaign featured the "taxpayer trap" language.
B'golly yer right. The "taxpayer trap" spin was that evil corporations would use the law to prevent environmental law enforcement or make it so costly that the nice environmentally friendly local and state government would have to raise your taxes to protect you.

Different hatchet. Similar job.

Moral: First. Coffee. Then Post.
11.8.2006 12:40pm
Len Gilroy (mail) (www):
Let's not forget that the Arizona's Prop 207, which passed by a 65-35 margin, was a Kelo-Plus measure (combined eminent domain and regulatory takings), so I wouldn't discount that strategy so quickly. I'd wager that if California's Prop 90 would have more closely resembled Prop 207 that the outcome would have looked a lot different.

Two prime examples where more solid drafting would have helped. First, Prop 207 had a waiver alternative to compensation, while Prop 90 did not. That gave opponents a ready-made argument that the costs would be exorbitant (i.e., "taxpayer trap"). Second, Prop 207 was very detailed and specific on exempted regulations, while Prop 90 was very broad and would have been subject to a lot of court interpretation. Again, a ready-made argument for opponents.

Prop 207 simply stuck closer to the template of Oregon's Measure 37. If Prop 90's regulatory takings component was modeled closer to M37/Prop 207, and had they had a campaign that could keep up with the opposition in terms of funding and messaging, it's not a stretch to assume that it could have picked up well over the 3 points it needed to pass.

The campaign funding was a huge issue in CA, WA, and ID. The initiative proponents got outspent by a vast margin. In WA, it was most severe, with the Gates Foundation and a variety of other opposition groups literally outspending the proponents by a factor of 8+ to 1. And they still got 42% of the vote. Idaho's measure suffered mostly from opposition from both of the gubernatorial candidates, as well as the current governor and other establishment politicos. Idaho's measure also didn't include a waiver option, so the opponents could follow the same playbook as in California.

Given the number of states that have already undertaken some sort of legislative eminent domain reform, I wouldn't expect Kelo-Plus to become a widespread strategy next time around, but Arizona shows that a good, well-crafted measure can be a political winner, so we might see another attempt in other states in the future -- Montana and California are the most likely bets, I'd wager.
11.8.2006 1:18pm
Master Shake:
These aren't "Anti-Kelo" referenda, they are "post-Kelo" referenda. Kelo didn't make these types of takings legal, they were already legal before; Kelo followed precedent. Kelo just publicized that fact.
11.8.2006 1:31pm
EL SL:
I agree on the language, Master. My bad.
11.8.2006 2:07pm
Linus (mail):
To follow up on Fub's comment, here in Idaho there were no pro-proposition ads, only anti- ones. The spin against it never even mentioned Kelo, it was all greedy out-of-state developers! blah, blah, blah. I don't think Idahoans are especially keen on the government taking your property to give it to someone who will pay more taxes, I just think the pro-proposition folks didn't explain it well or widely enough.
11.8.2006 10:55pm
Ed Nutter (mail):
I wasn't all that crazy about the "regulatory takings" provisions of 90. The spectre of the owner of a neighboring property doing stuff that reduced the value of MY property (one saltutory effect of zoning regs) was a potential problem that wasn't addressed. Provisions that required a private party to compensate other property owners in the same way as a regulatory taking would trigger would have made 90 more paletable.

I held my nose and voted for it anyway.
11.9.2006 1:12am
Patrick Wright (mail):
In reading North Dakota's amendment, I think it is also a "Kelo-plus" provision.

The pertinent language is that "private property may not be taken or damaged" without just compensation. The term "damaged" seems to indicate diminution in value, which is the basis of regulatory takings claims.

ND amendment language

P.S. Ilya, thank you for throwing me a bone about the Michigan amendment.
11.9.2006 12:14pm
Ilya Somin:
The pertinent language is that "private property may not be taken or damaged" without just compensation. The term "damaged" seems to indicate diminution in value, which is the basis of regulatory takings claims.

I think that "damaged" in such cases probably refers to physical damage, not merely to diminution of economic value.
11.9.2006 1:41pm
Patrick Wright (mail):
I am not so sure for this reason - the other Kelo-plus amendments also used the damage language, but the key difference is that they then defined that term to include diminution in values. My understanding is that most of these amendments/initiatives came from the same source.
11.9.2006 2:08pm
Richard Aubrey (mail):
In Michigan, the amendment not only prohibited the taking of private property to give to others for private use, either to punch up the tax revenues or the bank accounts of the various 'crats and commissioners involved, it requires 125% of fair market value to be paid when the taking is for public use.

Partly, I think, the extra 25% is because the real estate market in Michigan is 'way down, unless you're making "FOR SALE" signs. In addition, moving is tough enough when you want to. To be forcibly kicked out and given the same money you'd get if you wanted to sell is a tough item, indeed. I figure the point is, if the community wants the property, they'll have to want it badly, and think twice. Sounds good to me.
And if you're finally kicked out and the community figured your trauma was worth the premium, then at least you have the premium and that's worth something.
11.9.2006 5:00pm
Len Gilroy (mail) (www):
Hi Patrick,

Actually, the regulatory takings provision in Arizona's Prop 207 is basically an updated Measure 37 (but it includes a transferability provision, the lack of which has caused M37 so many problems).

But it's not a redefinition of "damage" in that case. In fact, "damage" appears only once in the findings/preamble section, and then it only is in reference to what's currently in the state constitution, among several other statements. But there's no "damage includes diminution of FMV due to regulation"-ish statement, like you saw in Prop 90 and I-933, for example.

And as I understand it, the various Kelo-Plus measures were all drafted by lawyers on the ground in each state. That's what accounts for such a wide variation in terms of content. As a Monday morning quarterback, I'd have to argue that they would have all been better off if whomever drafted Prop 207 would have drafted all of them, but that's just my opinion!
11.9.2006 8:20pm
Patrick Wright (mail):
Len,

I trust that you are correct. I looked at the various regulatory takings provisions before the election and recalled that many were similar if not exactly the same, and I was aware that many of the people had talked to our friends in Oregon about M 37. I have not looked at the language of 207 since then.

It was just the use of the term "damaged" in ND that made me think of the other initatives.

On a somewhat related note, do you know what happened in Idaho? 26 to 74? Yikes.
11.9.2006 11:44pm
Patrick Wright (mail):
Len,

I just reread your prior comment and have my Idaho explanation. Still the magnitude of the defeat is amazing.
11.9.2006 11:49pm