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Deception in the Political Struggle over California Propositions 98 and 99:

Some commenters on my previous posts on this subject claim that Proposition 98 (the California eminent domain referendum proposal that I support), is as much or more deceptive than Prop 99, the one that I criticized in my LA Times op ed and elsewhere for undermining property rights under the guise of protecting them.

Deception is a common political tactic, especially in a world of largely ignorant voters. I don't claim that the pro-98 campaign is squeaky clean on this score. But it is far less dishonest than the Pro-99 effort.

The crucial distinction between the two is that Prop 98 really would achieve the objective which is the main stated goal of its supporters: banning Kelo-style "economic development" takings and other similar abuses. To my knowledge, no expert commentator on either side of the issue denies this. By contrast, for the reasons stated in my op ed, Prop 99 will not provide any real protection for property owners against takings, despite the sponsors' disingenuous claims to the contrary. Moreover, it would actually undermine protection for property rights by blocking implementation of Prop 98 even if the latter passes. A proposed law that does what sponsors say it will do is surely less deceptive than one that not only won't achieve its supposed objectives but will actually undermine them.

Critics of Prop 98 claim that it is deceptive because, in addition to limiting takings, it also forbids the enactment of new rent control laws and phases out old ones as current tenants of rent-controlled apartments die or move out. In an upcoming post (if time permits), I will explain why this aspect of Prop 98 is likely to have only a limited impact if enacted - and a beneficial one at that. I will also argue that the inclusion of rent control in the proposal was probably a tactical error by the sponsors. Here, I focus solely on the issue of possible deception.

The sponsors of Prop 98 are indeed guilty of packaging a relatively unpopular proposal (phasing out rent control) with a far more popular one (protecting people against takings), and then emphasizing the latter far more than the former in their public statements. This standard political ploy is routinely used by both liberal and conservative groups. Even so, it may be objectionable, and it may be an effort to exploit political ignorance (because many voters might not know about the rent control provision in Prop 98). However, to my knowledge, the sponsors of 98 have never denied that their initiative would phase out rent control. Unlike the Prop 99 sponsors, they aren't lying about the effects of their proposal, but merely emphasizing the more popular ones and downplaying those that are less so.

Ultimately, I think that Propositions 98 and 99, like other proposed laws, should be assessed based on their likely effects, not on the ethics of their supporters. If I thought that Prop 99 was an improvement over the status quo, I would support it despite the deceptive tactics of its sponsors. The main point of my op ed was to outline Prop 99's substantive flaws, and (more briefly) to explain how they came about (because of widespread political ignorance, which the Prop 99 sponsors have effectively exploited). In real-world politics, there are few if any proposals promoted only by completely honest tactics. Prop 99 is unusual only in so far as it is a particularly brazen effort to use deception to promote a law that is intended to achieve the exact opposite of its stated objectives.

TomB (mail):
Why did [whoever] ruin Prop. 98 with the rent control crap? Don't get me wrong, I think the rent-control change is necessary, but why the political highjinks? Have we no principles left on any side of any political issue? Why give your opponents more reasons to shoot down your proposal?

Reversal of Kelo is such a worthy cause why not just run with it? In the end (meaning today and until election day) this decision negates any moral high ground that might have helped 98 to pass. If the eminent Ilya Somin is reduced to asking us to ignore his supporters' ethical lapses and telling us that the end justifies the means, then . . . well, I don't know what.

At this point I say defeat them both and start over. Who can you trust? If 99 passes then the 98 proponents have no one to blame but themselves. What seemed like a cute and sneaky way to get something for free looks like a bad decision in hindsight.

I think 98's right and 99's wrong, but why try to trick the voters, why not just trust them?
5.19.2008 4:20pm
Dilan Esper (mail) (www):
I think this is a good post. Personally, I think Kelo was an abomination and I'm also open to criticisms of rent control. (I'm not dogmatic about the free market but I think there's a lot of evidence that rent control contracts the supply of affordable housing in places like San Francisco, Santa Monica, and Manhattan rather than having its intended result.) I may very well vote for Prop. 98.

But I do think the process of bundling a widely popular proposal with an unpopular one and then running on only the popular part of the initiative is very common in California, and it is worth condemnation. And Ilya is treating this issue fairly.
5.19.2008 4:23pm
Ilya Somin:
Why did [whoever] ruin Prop. 98 with the rent control crap? Don't get me wrong, I think the rent-control change is necessary, but why the political highjinks? Have we no principles left on any side of any political issue? Why give your opponents more reasons to shoot down your proposal?

This is a good question. My understanding form conversations with experts in California is that this was done because the anti-rent control forces were needed to provide funding for the initiative (which is a far more expensive process in CA than in many other states, because of California's size).
5.19.2008 4:25pm
Specast:
I write this post with all due respect to Ilya personally, who I do have respect for. But your Op-Ed illustrates why I and others are frustrated about the pro-98 pitches. You've indicated that 98 and 99 should not be judged by who sponsors them, and that's a very fair point. But your Op-Ed makes a point of noting that 99 is "sponsored by groups representing cities, counties, redevelopment agencies and other pro-condemnation interests." But you didn't mention what interests sponsored 98. Why one and not the other?

You also suggest that 98 supporters are merely emphasizing the more popular aspects (Undo Kelo!) and deemphasizing the less popular ones (Undo rent control!), while never hiding the rent control changes. But your Op-Ed never mentions the rent control change at all; you say only that 98 "really would forbid 'economic development' condemnations and other abuses." I don't mean to impugn your personal integrity, but if that is not "hiding" the rent control portion of the law, it's in the same zip code.

Bottom line is this, in my opinion: since both are on the ballot, we are forced to deal with them as they are. I think 98 is a bad law on its merits and because it is a classic "Trojan Horse" proposition. The fact that 99 (which I prefer) might negate 98 is a reason to vote for 99. Hopefully, both will fail and interested parties can pressure the Legislature to craft a limited and sensible bill that reflects the consensus (or at least majority) view of the limits of eminent domain. Better that than 98.
5.19.2008 4:28pm
FoolsMate:
As an archetypical rationally ignorant voter, I'd like to hear Ilya Somin's thoughts on how "tight" the legal language of Prop 98 is. In recent California memory, we've had at least a few sloppily written ballot initiatives pass but not survive judicial challenge, amounting to a big waste of effort and taxpayer dollars. In principle, I support both aspects of Prop 98 (though find it odd they are combined), but would vote against any poorly worded initiative to avoid waste through incompetence.
5.19.2008 4:32pm
Crunchy Frog:
One of the provisos concerning ballot initiatives in California is that they are only supposed to be about one thing and one thing only. There is a good chance the rent control part of 98 will not pass constitutional muster because of this.
5.19.2008 4:37pm
Casual Peruser:
Crunchy Frog: Doesn't that mean that the eminent domain provisions of 98 are likely to fail as well?
5.19.2008 4:48pm
Andrew J. Lazarus (mail):

My understanding form conversations with experts in California is that this was done because the anti-rent control forces were needed to provide funding for the initiative (which is a far more expensive process in CA than in many other states, because of California's size).
This is the same Professor Somin who wrote that we should vote for 98 and then amend out the rent control sabotage later because "it will be easy for Californians to enact new rent control laws if they are so inclined because the CA constitution is easy to amend."

I see. It will be "easy" for seniors and other rent control advantaged deadbeats to fund a campaign to amend the Constitution to repeal part of the initiative, but it is so "expensive" to pass an initiative that anti-Kelo forces just had to turn to the California Association of Realtors and other landlord special interests for money.

If you will excuse me, Professor, I think we have here a Perry Mason moment.

And the amazing thing is, I'm not even sure I approve of rent control. But this is outrageous.
5.19.2008 4:52pm
Anon1ms (mail):
Florida requires that Constitutional amendments must address a single issue, and quite a few have been tossed off the ballot because they failed in this regard.

If California has a simular provision, I don't see how Prop 98 can withstand a challenge.
5.19.2008 5:26pm
Snarky:

Ultimately, I think that Propositions 98 and 99, like other proposed laws, should be assessed based on their likely effects, not on the ethics of their supporters.


There is enormous value in punishing the sponsors of laws who use deceptive tactics, even if the law is an improvement over the status quo.
5.19.2008 5:32pm
NickM (mail) (www):
It's not that it would have been impossible to qualify a Prop. 98 without the rent control provisions; it's that the apartment owners' associations and other groups were already there with sufficient money and looking for an initiative that rent control abolition could be put into. From the point of view of the political consultant, it's so much easier to do a campaign if the money comes pre-raised. Larding propositions with special interest provisions paid for by large contributions to the initiative campaign coffers (a significant portion of which ends up in the political consultant's pockets) has become a major cottage industry in California.

Nick
5.19.2008 5:39pm
Robert West (mail) (www):
I will also argue that the inclusion of rent control in the proposal was probably a tactical error by the sponsors.

Tactical problems like this are one reason that conservatives and republicans both do poorly in contemporary California.
5.19.2008 5:42pm
OZ:
California does have a single subject rule governing statewide initiative such as Prop. 99. Under Article II, Section 8(d) of the California Constitution, "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

There is a fair amount of case law discussing this requirement, although it is not clear or straightforward enough to make a firm prediction about how a Court would rule as to whether Prop. 99 complies with or violates the single subect rule.

Also, the single subject rule does not merely permit a court to invalidate a provision that has been passed by the electors. Its plain language (quoted above) permits a court to prevent an initiative that violates the single subject rule from even being placed on the ballot, that is, from being "submitted to the electors."
5.19.2008 5:54pm
Ken Arromdee:
A proposed law that does what sponsors say it will do is surely less deceptive than one that not only won't achieve its supposed objectives but will actually undermine them.

I don't find this so self-evident. I'd think that one criterion for telling whether one proposal is "less deceptive" than another is to determine how many people are being deceived. If a lot of people care about the rent control issue but few people care about the takings issue, a proposal that's deceptive about the former may deceive more people, and thus be "more deceptive", even if the deception is done in a milder way.
5.19.2008 6:08pm
M. Gross (mail):
I really don't see how rent control and eminent domain reform are separate subjects. They're both about government restrictions on private property rights.
5.19.2008 6:20pm
Justin Levine:
M. Gross

Try and look at this way - If Prop. 98 had advertised itself in big bold letters as saying "AN INITIATIVE TO ELIMINATE RENT CONTROL IN CALIFORNIA", and then buried language deep in its provisions that protected against Kelo-style takings, do you think voters would respond the same way to it as the way it is currently being advertised? If not, then it's fair to conclude that this really does deal with two separate subjects in the minds of the voters. If you honestly think it is the same subject, then let's stop referring to this as the "eminent domain reform" initiative and simply refer to it as "the initiative to eliminate rent control".
5.19.2008 6:30pm
Kazinski:
If the intent of proposition 98 is to greatly restrict the unfair taking of private property, doesn't that by definition mean eliminating rent control?
5.19.2008 6:38pm
Mark F. (mail):
The courts have already approved Prop 98 for the ballot. The arguments that it dealt with 2 totally seperate subjects were considered and rejected. The initiative deals with the broad subject of property rights. The "it really deals with 2 subjects" argument is now moot.

Frankly, any voter who actually reads Prop 98 can see it repeals future rent control. How is this deceptive? Are the supporters required to push this (perhaps) less popular aspect of it? Of course not. In any case, the Prop 99 supporters are making damned sure everyone knows about the repeal of rent control under Prop 98.

If Prop 98 loses I will agree that putting in the rent control issue was probably a tactical error.
5.19.2008 6:52pm
Deoxy (mail):
Which is more deceptive?

1) "This is A!" (It is A and B.)

2) "This is A!" (It is the inverse of A.)

Gee, tough question. If there is any kind of degree in deceptiveness, then 2 is much MUCH higher on the scale than 1. I don't see how this is even in discussion.

Indeed, they are so different that they even have different names. 1 is a "lie of omission", that is, leaving something out. This is generally judged on a case-by-cae basis, as sometimes it is harmless. In fact, in many cases, it is not even called, even by many upstanding and moral people, a "lie". This case is probably somewhere in the middle - that is, harmless to many people, but not remotely all.

2 is a "lie of COMISSION" - it is the DEFINTION of lying.

I will agree that the rent control issue is a tactical error - it remains to be seen if it is a large enough one to keep it from passing.
5.19.2008 7:01pm
January (mail) (www):
Thank you for your observations on 98 versus 99. 99 is a classic tactic in the world of ballot initiatives--reminiscent of those times when tobacco companies put "smoking ban" initiatives on the ballot after much more stringent smoking ban initiatives were petitioned on. The hope is that voters will not be able to discern in the wordy language on the ballot which is "the real" smoking ban. That happened in two states in 2006 (Arizona and Ohio).
5.19.2008 7:09pm
Dilan Esper (mail) (www):
The courts have already approved Prop 98 for the ballot. The arguments that it dealt with 2 totally seperate subjects were considered and rejected. The initiative deals with the broad subject of property rights. The "it really deals with 2 subjects" argument is now moot.

That's not true. Under California law, pre-election challenges are disfavored, and the courts will entertain post-election challenges based on the single subject rule.

In point of fact, Prop. 98 is almost certainly compliant with the single subject rule in the manner that it is interpreted by our courts (i.e., extremely loosely). But a post-election challenge is definitely not barred.
5.19.2008 7:12pm
MarkP (mail):
I'm not from California. Why is rent control so popular there? Granted, there are usually more renters than landlords, but the other people in the equation: commuters who have to drive long distance because rent control has jacked up urban prices, usually outnumber them both. Is there something cultural or generational at play here?
5.19.2008 7:14pm
Steve in CA (mail):
MarkP,

Rent control is only popular among people who live in rent-controlled dwellings. I don't think the rest of the population even knows California has any rent control. It's not that widespread -- it applies mostly to mobile home parks. There are also city-level rent control ordinances in some areas. I know LA has one, but I know a lot of people who rent in LA and none of them are in rent-controlled apartments. It must be very narrow. In every case that I'm aware, the law allows rents to rise with the CPI or some other measure of inflation.
5.19.2008 7:41pm
LM (mail):

I will also argue that the inclusion of rent control in the proposal was probably a tactical error by the sponsors.

Only if you consider trying to sneak a 50" plasma screen out of the store under your jacket a "tactical error."
5.19.2008 7:43pm
Christopher Cooke (mail):
MarkP: San Francisco, Berkeley, LA, and Santa Monica have some form of rent control (I am not sure, but Oakland also may have it). Rent-control is popular in those cities, where a majority of residents are renters. They are just following their narrow economic self-interest.

Ilya, I think there is a good chance that Prop 98 will be found to violate the single subject rule, cited above, in the first court case to challenge the initiative. It also does seem to me to be less than candid for you to write an op-ed endorsing Prop 98 measure without mentioning the ban on rent control it would enact. Arguably, far more people will be affected by abolishing rent control than by prohibiting Kelo-style takings.
5.19.2008 9:35pm
Paul B:
A larger share of apartments in California are technically subject to rent control, but only in a very few cities, most notably San Francisco, Berkeley, Santa Monica and a couple of small communities does rent control have any signifcant effect.

A larger number of cities passed rent regulation ordinances in the aftermath of Prop 13 (1978) as a way to deflect pressure from tenants for more onerous laws. These tenants were screaming, "if the landlord's taxes have been slashed, why are our rents continuing to be jacked up?"

San Jose for example has "rent control" but it exempts 1-4 dwelling unit structures, exempts all apartments built after the ordinance's adoption in 1979, allows for rent increases of the greater of CPI or 8%/yr, requires the tenant to file a complaint if he wants to contest larger increases, and has vacancy decontrol (which all cities must now have by state law since the mid 1990s). With all of these limitations, you can see that the ordinance has virtually no relevance.

I'm guessing that the bulk of financing for Prop 98 has come not from apartment complex owners, but rather from mobile home park owners. While I do not support rent control, it does seem to me that a situation where the resident owns the (not very)mobile home, but rents the land ("pad")underneath requires some sort of regulatory regime that recognizes the legitimate interests of both parties.
5.19.2008 9:40pm
CDR D (mail):
>>>I will agree that the rent control issue is a tactical error - it remains to be seen if it is a large enough one to keep it from passing.
<<<

Not for this voter.

My ballot has already been submitted via absentee. Pro 98, anti 99. The rent control provision was just icing on the puck that I hope knocks the teeth out of some of these slimey politicians.

The rent control provision does NOT affect any current renters, and the argument presented by the anti 98 crowd is disingenuous.
5.19.2008 9:42pm
Consenting:
I find it very amusing that so many posters, even Ilya himself, speak about how positive people are at ending takings, and how negative people are at ending rent control, so it was a mistake to link them.

RENT CONTROL IS A TAKING. This is a great example of how short-sighted and unprincipled most people are. Not a landlord? Don't own property you rent to other people to use? Then you apparently don't mind when the government initiates a regulatory taking against landlords by preventing them from charging a market clearing rate for their property. Thats a taking. But no need to speak up until it's YOUR property being taken, either directly via Kelo-like maneuvers or via regulation as in Lucas (prior to the SC decision in his favor).
5.19.2008 11:49pm
Daryl Herbert (www):
Prop 98 does affect current renters indirectly, in that if they want to move to a new apartment, it won't be rent controlled.
5.20.2008 12:50am
M. Simon (mail) (www):
Rent control is a good thing.

Why do I say that? Because anything that helps destroy California's economy is a good thing. Illinois needs all the help it can get.
5.20.2008 4:20am
M. Simon (mail) (www):
Consenting:

Bravo. Had you not made the point I was going to. (had to get the snark in first)
5.20.2008 4:21am
Deoxy (mail):

RENT CONTROL IS A TAKING.


Yes, yes, everyone here knows and recognizes that... but most other people do not. In the eyes of a great, large mass of people, the two have no relation, and they think of them differently. Stupid, but reality does not have to conform to our concerns about logic or consistency.
5.20.2008 12:43pm
Crackmonkeyjr (www):
To the people who said that "Rent Control is a Taking:"

Not under any judicial interpretation. Something is only considered a regulatory taking if it deprives the owner of all commercial value. Rent control pretty much by definition doesn't do this. If you call rent control a taking, than any regulation on property would be a taking, this would include everything from pollution laws to building codes to zoning laws. There is no basis in either law or history for such an interpretation.

You can argue that some or all regulations on property are bad ideas, and to a large extent I would agree, but just because something is bad policy doesn't mean that it violates the Constitution.
5.20.2008 4:46pm