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Causes of the Defeat of Proposition 98:

In my last post, I considered the likely impact of the passage of California Proposition 99. In this one, I consider the causes of the crushing defeat of Proposition 98 - the initiative that, unlike 99, would have given property rights some real protection against takings.

There were two major causes of Prop 98's defeat. One was the sponsors' mistake in combining the popular cause of restricting eminent domain with a far less popular phaseout of rent control. I have already written on this one at length (see here and here), and don't have much to add. I would only emphasize the importance of not repeating this error in the future. As I noted in the two earlier posts cited above, California property rights advocates made a similar mistake with Proposition 90 back in 2006. Hopefully, they won't commit the same error a third time.

The second and more unusual cause of 98's defeat was the presence of Proposition 99 on the ballot. As I have documented at some length in earlier posts in this chain (e.g. - here), Prop 99 purports to protect property rights against takings, but actually doesn't. It passed easily, with 62% of the vote. Voters concerned about eminent domain could easily have been fooled into believing that Prop 99 would "solve" the problem without needing to vote for the more controversial Prop 98. This would be consistent with the pattern in many other states, where voters have been persuaded that Kelo-style takings have been banned by new laws that are actually ineffective (albeit usually legislatively enacted laws rather than referenda).

The interesting question is: What was the relative importance of the two factors? Perhaps the impact of Prop 99 was minor relative to that of the rent control issue, or vice versa.

Anything approaching a definitive answer would require detailed survey data. Nonetheless, the available evidence suggests that Prop 99 probably did make a major difference to the outcome. One way of measuring the difference it made is to compare Prop 98 (which got only 39% of the vote) with Proposition 90, the 2006 California property rights initiative that was defeated by a narrow 52-48 margin.

Like Proposition 98, Prop 90 combined restrictions on eminent domain with other measures that are anathema to many liberals. Its "regulatory takings" provision would have required the government to compensate property owners for any diminution in the value of their land resulting from the enactment of new regulations in a whole host of areas, including many environmental regulations. New rent control laws (including tightening of existing ones) would also have required compensation. In that respect, Proposition 90 limited rent control as well, though not as much Prop 98 would have done. Because of its broad sweep, Proposition 90 should have been much more offensive to liberal (and many moderate) voters than Proposition 98, which would only have affected rent control in addition to its primary purpose of banning Kelo-style takings. Yet Prop 98 was defeated overwhelmingly, while Prop 90 nearly prevailed.

It would probably be a mistake to assume that the presence of Prop 99 on the ballot accounts for all of the difference between the narrow defeat of Proposition 90 and the anti-98 landslide. But it may well account for the lion's share. Indeed, the nine point difference between the Pro-98 vote and the pro-90 vote may even understate the impact of 99. Because of its narrower scope, Proposition 98 was intrinsically offensive to fewer voters than Prop 90 was and its "natural" level of support might well have been higher than the 48% that Prop 90 got.

Finally, it's worth reemphasizing the point that Proposition 99 would likely have defeated Prop 98 even if the latter had gotten a majority; this would have occurred because Section 9 of Proposition 99 would have overrriden Prop 98 so long as the former got more votes. To outpoll Prop 99, 98 would have had to get more than 62% of the vote. As I explained in my last post, even a perfectly drafted Prop 98 would probably have been negated by 99. Some commenters on my previous post claim that many people might have voted for 99 solely to defeat 98's rent control provision, thereby implying that a better-drafted 98 would have outpolled 99. This is theoretically possible, but highly unlikely. First, the 62% that Prop 99 got is pretty similar to that achieved by anti-Kelo initiatives in other states, including liberal states politically similar to California. That suggests that there wasn't any large additional increment of voters who supported 99 solely to negate 98.

Moreover, the Pro-99 forces didn't stress Section 9 in their ads as a reason to vote for 99; they instead emphasized the (false) claim that 99 would protect homeowners. Anti-98 ads did stress rent control as a reason to vote against 98 itself, but did not emphasize how 99 could be used to block it.

Those few voters knowledgeable enough to know about Section 9 and its effects were also probably knowledgeable enough to know that - by election day - Prop 98 had no real chance of winning, according to polls. Such few voters as did support 99 solely because of its potential impact on 98 were likely offset by pro-98 voters who opposed 99 solely for the opposite reason. In a world where the vast majority of citizens are ignorant of very basic facts about politics and public policy, I find it highly unlikely that any significant number of voters read and understood the highly technical Section 9 and voted for or against 99 on that basis. If there is polling data indicating the contrary, I would be very interested to see it, however.

Ultimately, it's difficult to gauge the relative impact of Prop 99 and rent control on the defeat of 98 without good survey data. Quite likely, both were important. But the available evidence suggests that 99 made a real difference. At the very least, it probably turned what might have been a close defeat for 98 into a landslide. It's possible that the rent control issue would have defeated 98 even in the absence of 99. But the reverse is also likely: Prop 99 might have caused the outright defeat of 98 even in the absence of the rent control provision. And even if a rent control-free Prop 98 had gotten a majority, it would very likely have been negated by Section 9.

For now, this will be the last post on Propositions 98 and 99. However, I will try to get survey data on voter attitudes to the two propositions, and will return to the question if that data contains any interesting revelations.

Ohismith (mail):
Prop 90 almost won, yet 98 was soundly defeated. What's the difference between 90 and 98? Rent Control. No you say, it's not Rent control, it's the presence of 99. But look at 99 and you will see that it doesn't repeal Rent Control. So we are back to square one--Californian's want Rent Control around, even if they are not renters, because their children or their parents may one day be renters, and they may be the ones paying the rent.
6.4.2008 6:23pm
Smokey:
Like Proposition 98, Prop 90 combined restrictions on eminent domain with other measures that are anathema to many liberals. Its "regulatory takings" provision would have required the government to compensate property owners for any diminution in the value of their land resulting from the enactment of new regulations in a whole host of areas, including many environmental regulations.
That is because liberals are basically dishonest. From there, it's only a small step to taking someone's property.
6.4.2008 6:45pm
Ilya Somin:
Prop 90 almost won, yet 98 was soundly defeated. What's the difference between 90 and 98? Rent Control. No you say, it's not Rent control, it's the presence of 99. But look at 99 and you will see that it doesn't repeal Rent Control.

The problem with this argument, as I pointed out in the post, is that Prop 90 would have had almost as much impact on rent control as Prop 98. MOreover, it would also have curtailed a wide range of other, at least equally popular policies. It's true that 99 doesn't repeal rent control, but it also doesn't protect property rights against takings (it's ostensible purpose) either.
6.4.2008 6:59pm
Ted F:
Ilya, it's a mistake to ascribe this level of rationality to the decision-making process. The electorate in 2008 was a different selection than the electorate in 2006. Prop 99 passed and 98 failed because that's how the unions told their members to vote, and in a low-turnout election, the cohesive organizations with GOTV strength control the results at the margin.
6.4.2008 7:13pm
EH (mail):
Ah, the SF Examiner. I guess there was no data available on the topic from the NY Post or Drudge.
6.4.2008 7:22pm
h0mi:
I thought 98 specifically called out rent control. 90 not so much.
6.4.2008 8:16pm
Did You Know? (mail) (www):
is 09 the winner?
6.4.2008 8:38pm
Public_Defender (mail):
The reality is that most people want the right to use the democratic process to make sure their neighbor doesn't use his or her property in an obnoxious way, and they're willing to give up some limited property rights in exchange.

That's what's politically hard for so-called "property rights" measures. If people wanted to use democratic processes to "protect" property rights as libertarians would like, you wouldn't need the proposition in the first place.
6.4.2008 8:51pm
Smokey:
Nice try there, EH:
Ah, the SF Examiner. I guess there was no data available on the topic from the NY Post or Drudge.
You're wrong, of course. It was Pew Research -- a liberal pollster, and the American Taxation Association. The Examiner only reported their findings.

But thanks for competing, and we have some lovely parting gifts for you on your way out.

Seriously, though, similar studies have been done in the past, with the same results. They just highlight the difference between liberals and conservatives.
6.4.2008 8:55pm
ithaqua (mail):
Perhaps a stupid question: have you considered that you may, perhaps, be underestimating the intelligence of California voters? They are, by and large, wealthy liberals; it's certainly possible that they support eminent domain being used for private economic development, if they can make certain that only "those people" will be impacted by the takings. From that standpoint, the mild protections for homeowners in Prop 99 would seem reasonable, while Prop 98, "the initiative that, unlike 99, would have given property rights some real protection against takings", lost for that very reason and not because of the rent controls.

Just a thought.
6.4.2008 8:56pm
Smokey:
Public_Defender:
If people wanted to use democratic processes to "protect" property rights as libertarians would like, you wouldn't need the proposition in the first place. [my emphasis]
Huh??

What 'democratic processes'? The Kelo decision judicially legislated away 200+ years of property rights, with no regard for democracy.
6.4.2008 9:00pm
Smokey:
ithaqua:
...Prop 98, "the initiative that, unlike 99, would have given property rights some real protection against takings", lost for that very reason and not because of the rent controls.
That's been a big part of my argument all along. The white wine and brie class could not care less about poor tenants, except as lowlife hoi polloi to look down on.

Of course these people knew the score: local governments, developers and construction unions salivated ravenously about all the money to be made with the passage of Prop. 99. The fact that lots of poor tenants will perforce be evicted wholesale bothers them not at all -- their crocodile tears and lip service to the contrary notwithstanding.
6.4.2008 9:16pm
grackle (mail):
California voters, for the last thirty years have always supported (1) veteran benefits, (2)Park and Land protection, i.e. greenbelt areas , and (3) to a lesser extent aid to renters. Whoever "Smokey" is, he doesn't know the California voter. In this case it is both that 99 protects (or seems to) the property rights against takings for other private use but sensibly allows eminent domain for needed takings. People know they need roads and services that often conflict with private property rights. It is not all black and white. At the same time, most Californians realize that the majority of the state's urban citizens live in areas with volatile property values, while most of them are renters. There is definite sympathy for that. The fact that 99 won handily means that the people, regardless of Smokey's affection for them, knew exactly what they were doing.
6.4.2008 9:35pm
OrinKerr:
I'm not expert in this topic, but I wonder if the reason is that the voters were well informed and rationally picked the Proposition closest to their net policy preferences.
If so, the lesson would be to try to make sure that your Proposition is the one closest to the publics' policy preferences.
6.4.2008 9:40pm
OrinKerr:
The Kelo decision judicially legislated away 200+ years of property rights, with no regard for democracy.

I don't understand this. Whether you agree with it or not, the Kelo decision lets the people decide what the law is instead of the judges deciding. Why is having the people decide a decision with "no regard for democracy"?
6.4.2008 9:45pm
Smokey:
grackle:
...99 protects (or seems to) the property rights against takings for other private use but sensibly allows eminent domain for needed takings.
Oh, yeah: "needed" takings. Needed by the local pols, the developers, and the construction unions. Who else 'needs' to have their property taken?

Naturally, it doesn't matter whether the poor tenants "need" evicting. Nobody asked them, did they?

You don't even realize how statist you sound, do you?

And Orin Kerr:
"I'm not expert in this topic..." "I don't understand this..."
Best to stick with what you know, then. Right?
6.4.2008 11:20pm
MarkField (mail):

Best to stick with what you know, then. Right?


That's an amazingly arrogant and obnoxious response. Prof. Kerr asked a legitimate question, one that you obviously have no answer to.
6.4.2008 11:52pm
OrinKerr:
Smokey,

Please re-read our comment policy. If you cannot comment here in a civil manner, you will not be permitted to comment at all.
6.5.2008 1:13am
Public_Defender (mail):
Smokey, takings are done by democratically elected governments. The people get a chance to vote on the people who make the decisions, and the decisions are sometimes subject to referendum. Also, some of the "property rights" libertarians want to protect include "freedom" from democratically enacted zoning and environmental regulations.

I respect professor Somin's internally consistent libertarian property rights position. He does a service to his students and his readers by teaching that perspective. But, like my views on civil liberties, his views are the minority. (Some polluters and developers exercise a lot less good faith when they pick and choose from property rights arguments to defend their right to pollute and to put inappropriate developments next to residential neighborhoods.) In a democratic society, sometimes your views don't prevail.
6.5.2008 6:05am
Public_Defender (mail):
On another note, in one important way, Kelo was pro-democratic. Non-democratically elected judges stayed out of the way of a democratically-elected local government. How many times have conservatives complained about "activist" judges overturning the decision of the people?

Of course, it's perfectly fair to argue that courts should strike down a democratically enacted law as unconstitutional. And some actions that the government takes can threaten democracy (I think permitting torture and unsupervised wiretaps fall into that category).

But people on both the left and the right embarrass themselves and their causes when they make hyperbolic claims that a decision of a democratically-elected government is "statist" or anti-democratic just because they think it was wrong.

A lot of the anti-Kelo complaints fall into this category. The government has always been able to take property while paying for it. Kelo just gave democratically-elected local governments more leeway to decide what "public" use was. It may be bad policy, but it really wasn't a radical decision. The only thing surprising was that it as only a 5-4 decision.
6.5.2008 6:31am
Smokey:
My apologies to Orin Kerr.

However, I can not agree that such "takings" are not statist. A republican form of government is designed to protect the minority from having their property confiscated by the majority -- which is exactly the situation that Kelo invented. If Kelo had been a routine decision, there would not have been such an uproar.
6.5.2008 12:50pm
Crunchy Frog:
Count me amongst the ranks of folks who voted for 99 in order to defeat 98.

How many mobile home owners are there in the state of California? I guarantee every one of them did the same.
6.5.2008 1:56pm
Justin Levine:
Like Crunchy Frog - Even though I thought 99 stunk, I also voted for 99 specifically in order to ensure the defeat of (the far worse) 98. I know of at least a dozen people who also did the same thing and were well informed of the issues involved with this debate. I admit it is only anecdotal evidence, but I think this played a far greater factor than Ilya cares to admit.
6.5.2008 6:08pm