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.
All Related Posts (on one page) | Some Related Posts:
- Should Homes Get Stronger Protection Against Eminent Domain than Other Property?
- Eduardo Penalver on California Proposition 99 and the Kelo Backlash:
- Penalver on Prop 98 & Prop 99:
- Causes of the Defeat of Proposition 98:
- Why California's Proposition 99 is a Lot Worse than Nothing:...
- Tim Sandefur on California Proposition 99 - the Deceptive Eminent Domain "Reform" Initiative:
- Proposition 99 - California's Trojan Horse Eminent Domain "Reform" Referendum Initiative:
- Eminent Domain and Minority Rights: