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Polls on California Eminent Domain Ballot Initiatives Show Prop 98 Likely to Fail and Prop 99 Likely to Pass:

As this San Francisco Chronicle article indicates, recent polls show that California Proposition 98 (the ballot initiative that would meaningfully restrict eminent domain) is likely to be defeated in tommorrow's referendum. Proposition 99, the rival initiative sponsored by local governments and other pro-condemnation interest groups that only pretends to protect property rights against takings, is likely to pass. In a recent Field Poll cited in the article, Proposition 98 was losing by 43 to 33 percent among "likely voters," while Proposition 99 was ahead by 48 to 30 percent. A slightly earlier poll conducted by the Public Policy Institute of California has similar results.

If, as is likely, Proposition 98 is defeated, it will probably be a result of the combination of the sponsors' tactical error in combining the popular anti-eminent domain measure with a far less popular phaseout of rent control (a mistake I criticized in one of my earlier posts), combined with the presence of the deceptive Prop 99 on the ballot. The latter probably led voters to believe that they could protect property rights against takings without simultaneously attacking rent control.

I will post further on the lessons of this outcome (assuming that it actually happens) tommorrow or Wednesday. For now, however, the key lesson - one that should have been learned back in 2006 - is that anti-Kelo eminent domain measures can pass so long as they aren't combined with anything else that is significantly less popular. This is the second time that California property rights activists have had an opportunity to learn this particular lesson since Kelo. The first was Proposition 90 (briefly discussed in this post), which was narrowly defeated in 2006 because it combined restrictions on Kelo-style "economic development" takings with a far more controversial effort to restrict regulatory takings.

To make my position clear, I myself favor the abolition of rent control, and also think that there should be tighter restrictions on regulatory takings (though I haven't studied the regulatory takings provision of Prop 90 closely enough to tell whether I think it strikes the optimal balance on that score). However, the best should not be the enemy of the good. California is a major abuser of both "blight" and economic development takings. As the Institute for Justice, the libertarian public interest firm that litigated Kelo, concluded in a 2003 study, "California is one of the most active states in condemning properties for the benefit of other private parties." Passing a measure abolishing such takings in California would be an important victory in its own right.

REQUEST TO READERS: If you work for Field Poll or the Public Policy Institute or otherwise have access to the data from the two polls cited above, please contact me. I would like to discuss the possibility of using them in my research. I would, of course, use the data for research purposes only and would not resell it. If you can't release the individual-level data, but can only give me the complete aggregates, that would be useful too.

Snarky:
I can't say that I am sorry to see Prop 98 defeated.

Given how poorly it was drafted and the deceptive tactics used to promote it, this Proposition deserved to die.
6.3.2008 12:21am
Ilya Somin:
Given how poorly it was drafted and the deceptive tactics used to promote it, this Proposition deserved to die.

I covered the issue of deception in earlier posts. The advocates of Prop 98 never denied that it would phase out rent control. They just emphasized its more popular effects. Unlike the advocates of Prop 99, who claimed that their proposal would have the opposite of its actual effect.

Whatever the sins of Prop 98's drafters, for reasons I discussed in earlier posts, it would have been a substantial improvement over the status quo in California. That should be the ultimate criterion for deciding whether or not it should be passed.
6.3.2008 12:33am
Snarky:

Whatever the sins of Prop 98's drafters, for reasons I discussed in earlier posts, it would have been a substantial improvement over the status quo in California. That should be the ultimate criterion for deciding whether or not it should be passed.


I disagree. I believe dishonesty in politics should be punished. That is, even if you believe that a policy is an improvement over the status quo, it sometimes makes sense to vote against it if you believe that those who have drafted the policy are promoting it in a dishonest manner.

You are essentially assuming that the costs of dishonesty are zero. But that cannot be right. Assuming that the costs of dishonesty are not zero, it makes sense to vote down some policies that are an improvement over the status quo to reduce dishonesty.

I am betting that you are more cynical about the chances of improving honesty in the political process than I am.
6.3.2008 12:42am
Justin Levine:
Ilya -

To use some of your past arguments, "it is easy to amend the California Constitution", so you should happily accept Prop. 99 for now and then reform it later in future elections, right? [I disticntly recall you suggesting that those in favor of rent control vote for Prop. 98, and then simply vote for another constitutional amendment that reinstates rent control in future years. That is a very cynical argument in my view.]

The dishonesty of Prop. 98 with regard to the rent control issue was so foul that it is riduclous to trot out the cannard that "the best should not be the enemy of the good". In that case, you should happily embrace Prop. 99 since it still manages to prevent eminent domain abuse of single family residences and "the good" should not be the enemy of "the better" right?

I for one couldn't be happier to see this thing go down. I'm sick of charlatans abusing California's initiative system.
6.3.2008 12:44am
Consenting:
"[Prop 99] probably led voters to believe that they could protect property rights against takings without simultaneously attacking rent control."

translated:

"Prop 99 probably led voters to believe that they could protect THEIR property rights against takings without simultaneously attacking TAKINGS AGAINST THE PROPERTY OF THOSE WHO RENT THEIR PROPERTY."

Unprincipled people get what they deserve, Ilya. Sadly, so do the rest of us.
6.3.2008 1:11am
JDS:
As I understand it, a city can use eminent domain to condemn a property which, because of Prop 13, has a very low property tax rate. The tax which would be boosted to 1% of full market price if the government seized it and handed it over to a new owner.

If Prop 98's proponents had explained how Prop 99 and eminent domain could be used to put a particularly horrific end to Prop 13, they might have won.
6.3.2008 1:50am
Cornellian (mail):
When 98 fails tomorrow (and it will) you can put the blame squarely on those who tacked on the provision abolishing rent control. Predictably, the argument against 98 distributed in the little voting booklet California sends out to the voter says "abolishes rent control!!!!" about every second line and barely mentions anything else. I saw it described in the LA Times as "abolishes takings like Prop 99, but also abolishes rent control." Sure that's a loose and inaccurate summary, but what did people expect? It's not a shocking revelation that newspaper reporters are not there to provide in-depth, nuanced analysis - they're generalists writing on very short deadlines with highly constricted word limits so this kind of description is exactly what the people behind Prop 98 should have expected.
6.3.2008 2:54am
Bill R:
The inclusion of rent control phaseout in 98 was of course deadly to the proposition. But, it's rational to reject 98 based on this defect.

On the one hand, 98 mostly limits future takings and therefore benefits all property owners fairly evenly. The exception is those few owners of properties currently being, or obviously likely to be, targeted by imminent domain proceedings prohibited by 98 - these owners may benefit disproportionately by passage of 98, but this seems likely to be a very small group.

On the other hand, by including rent control phaseout, 98 tried to "undo" past takings for a very select group of investors. Even odder, the party (the current owner of rent controlled property) being enriched (via increased property value resulting from phaseout of rent control) by 98 in many cases isn't even the party that suffered the loss (this would have been the owner of the property, even if vacant land, when the property was initially subjected to rent control).

Either 98 should have made a serious attempt to compensate all past "victims" of newly prohibited takings or none.
6.3.2008 2:59am
Martin Grant (mail):
As an ACLU supporter, I find it interesting (and annoying from what I understand of prop98 as a non-CA resident) the ACLU of Southern California was against prop 98. It's not consistent with their message as I understand it.
6.3.2008 7:55am
Francis (mail):
Ilya: Rent control was put on the Prop in order to attract the funding necessary to hire the signature collectors. Without the rent control measure, you'd have five libertarians gathered around a supermarket in West LA still trying to get enough signatures.
6.3.2008 10:11am
Public_Defender (mail):
Doesn't 98 also contain language that would define environmental and zoning regulations as takings ("damage" to property rights)? It also would make it almost impossible to put in public utilities because 98 expressly bans the use of eminent domain for utilities.

98 does a lot more than stop Kelo-style takings. Instead of protecting homeowners, it would prevent homeowners from protecting their property through reasonable zoning and environmental regulations by making such regulations prohibitively expensive.

Based on his writing, it's clear that Professor Somin supports the measure in good faith, but this isn't his baby. The property rights and big developer lobby got greedy. Voters apparently have seen through their ruse.
6.3.2008 12:38pm
Smokey:
Snarky:
I believe dishonesty in politics should be punished.
And,

Justin Levine:
The dishonesty of Prop. 98 with regard to the rent control issue was so foul... and blah, blah, etc.
Don't people even read? Or are they the dishonest ones?

Ilya Somin:
The advocates of Prop 98 never denied that it would phase out rent control.
That is an indisputable fact, published on the Prop. 98 website. Where is the 'dishonesty'? Can anyone point it out?

I'll tell Snarky & Levine exactly where the dishonesty is: it is enshrined in the veiled language of Prop. 99, which sneakily pretends to rectify Kelo -- when in fact it will permit the ravenous triumvirate of local politicians, developers, and construction unions to take away the property of citizens for their own enrichment, and evict poor tenants in wholesale lots in the process.

That is exactly what Proposition 99 allows -- but the promoters of Prop 99 will not admit it. Why? Because they are being dishonest.

If the posters above are truly concerned about 'dishonesty', as they claim, then they will come out and oppose Prop 99.

But don't hold your breath.
6.3.2008 12:43pm
Robert West (mail) (www):
Public_Defender: no. Proposition 90, in 2006, included such language, but Proposition 98 does not.
6.3.2008 12:46pm
Public_Defender (mail):
Section 2(d) appears to undo a lot of zoning and envirnmental laws:


When state or local governments use eminent domain to take or damage private property for public uses, the owner shall receive just compensation for what has been taken or damaged.


You are right as to public utilities. I was wrong.
6.3.2008 1:01pm
Ilya Somin:
you should happily embrace Prop. 99 since it still manages to prevent eminent domain abuse of single family residences and "the good" should not be the enemy of "the better" right?

The problem is that Prop 99 does not in fact protect single family residences from takings. I have explained why in great detail in previous posts on this same thread.
6.3.2008 1:37pm
Ilya Somin:
To use some of your past arguments, "it is easy to amend the California Constitution", so you should happily accept Prop. 99 for now and then reform it later in future elections, right?

I do indeed hope that a better initiative will be passed in later elections. However, Prop 99 will make this more difficult by persuading some voters that the eminent domain problem has been "solved" already. By contrast, my earlier remark referred to what would happen on rent control if Prop 98 had become law. Supporters of rent control would not then be falsely persuaded that rent control was still in place, and so would be quite willing to support an initiative to reinstate it.
6.3.2008 1:39pm
some dude:
Isn't rent control and public takings the same thing?
6.3.2008 2:01pm
Justin Levine:
Smokey -

You are being asinine. Of course 98 was/is dishonest and deceptive due to the fact that the rent control provisions were buried in the text under its definition of "takings" - not stated upfront. The fact that Pro. 98 supporters "never denied" its effect on rent control doesn't make the proposition itself an honest one.

But whatever. Prop. 98 is still going down to defeat because of this dishonesty. You can stew all you want about it and call me whatever names you want. I'll still have a smile on my face by the time the polls close here.
6.3.2008 5:11pm
CDR D (mail):
I didn't see where 98 was dishonest or deceptive.

I read the voter guide. I knew what the propositions were about.

I voted yes on 98, and no on 99.
6.3.2008 8:06pm
Dilan Esper (mail) (www):
Without the rent control measure, you'd have five libertarians gathered around a supermarket in West LA still trying to get enough signatures.

That assumes there are 5 libertarians in West LA since Virginia Postrel left town.
6.3.2008 8:33pm
Smokey:
Justin Levine, you are trying to whip a dead horse with your ridiculous, dishonest, and easily disproved claim that Prop 98 did not disclose the rent control aspect. The Prop 98 backers clearly explained exactly how it would work. It was never hidden. It is on their web site under "Summary of key provisions in the initiative."

I note that in your factually wrong claim of dishonesty on the part of the initiative's backers [of which I am not one, although I will vote in favor], you avoided any mention of the fact that the Prop 98 web site makes it clear that rent control would be phased out -- while permanently protecting all current tenants.

Eliminating rent control would certainly be beneficial to society, because legal thievery harms society by enshrining into law the idea that one group can legally confiscate the property earned by another group -- even if some of the thieves are much better off financially than those they are stealing money from. If society believes that renters below a certain financial threshold should be subsidized [as is done with Section 8 vouchers], then the only ethical method is to use taxes to provide the subsidy. Forcing a relatively poorer property owner to subsidize a wealthy tenant is simply dishonest.

And make no mistake, rent control is theft. A certain subset of property owners are forced, under color of law, to subsidize tenants -- irrespective of whether those tenants are rich or poor. How is that different from theft? It is no different than if a part of your paycheck was turned over to me by government edict; you certainly would see no distinction between that situation and the theft of your money.

The rent control situation is due to one fact: that tenants greatly outnumber rental property owners. Local governments force this transfer of wealth for one reason only: to buy votes by using an unwilling victim's assets. Anyone can be a party to this confiscation, or they can refuse. It all comes down to whether someone has, or lacks, personal character.

I agree with you that the rent control aspect will cause the defeat of Prop 98. That has been my position from Ilya's very first article on this subject.

Allow me to point out an uncomfortable truth: no one is forced to be a party to this type of theft. Just because "it's legal," and "everybody does it" does not make one a non-thief. Supporting the confiscation of an honest property owner's wealth simply makes you an enabler of theft. Rent control, as presently constituted, is theft by government edict. The sad thing is the fact that many truly poor tenants, who have no one to defend them against mass eviction, will be forced out of their homes due to the deceptive terms and advertising of Prop 99 -- which is, in fact, a truly dishonest proposition. If you think I am impuning the character of those who think that legalized theft is fine, I am. A thief is a thief, and denying the fact doesn't change it.
6.3.2008 8:46pm
Anthony A (mail):
Pretty much everything the Prop 99 proponents said was a lie.

On the other hand, I have to thank California voters for protecting *my* house, even though they've failed to protect their own residences.
6.4.2008 12:14am