The supporters of the six property measures in Western states have mostly tried to avoid a legitimate debate over the role of regulation and property. Instead, activists have engaged in a variety of underhanded tricks.
First, they’ve tried to confuse the central issue by talking about eminent domain — an entirely different subject.
The strategy of confusion was laid out in a Reason Foundation paper helpfully subtitled “Exporting Measure 37 To Other States.” The paper effectively set the movement’s marching orders. In fact, five of the six states have ballot measures that address both eminent domain and takings. But why all the attention to eminent domain in the first place?
A little history. In 2005, a closely divided U.S. Supreme Court ruled that governments can use the power of eminent domain to seize property and turn it over to a private party for economic development. The case, Kelo v. City of New London, affirmed the role of eminent domain beyond its traditional use as a tool for building infrastructure, such as roads or utility lines. Eminent domain sometimes requires cutting across private property — provided, of course, governments first compensate the property owners for seized property.
Predictably, Kelo upset people, especially people in poor communities, who worried that governments would abuse their power to enrich private developers. A number of states quickly passed legislation to prevent Kelo-style eminent domain.
But Kelo also had another side effect. It provided a political smokescreen for developers and speculators to pass legislation they had long desired. If passing a law like Oregon’s Measure 37 was politically infeasible, Kelo was the perfect Trojan horse.
Somewhat ironically, the Reason Foundation’s marching orders accidentally make clear that many of the 2006 ballot measures may be unconstitutional, at least in states that permit initiatives to contain only a single subject. Eminent domain and regulatory takings are two separate issues, according to Reason (they’re right about that), and they propose using one to run interference for the other.
So it was not a huge surprise when Nevada’s Supreme Court partially invalidated that state’s takings measure, PISTOL. Reasoning that the measure contained two distinct subjects, the high court struck the portion dealing with regulatory takings and let the remainder stand. It’s possible that courts in other states may follow suit.
To make matters worse, the dishonest electoral strategy was amplified by other dirty tactics. Paid out-of-state signature gathers hyped misleading claims about the ballot measures they were endorsing.
So dirty were supporter’s techniques that Montana’s Supreme Court unanimously ruled to strike that state’s measure, Initiative 154. In scorching language, the court held that backers had persistently engaged in deceptive and fraudulent tactics, in violation of Montana election law.
As with the Nevada decision, the court’s ruling in Montana may have repercussions in other states, because signature-gathers and initiative supporters engaged in similar tactics in most of the states with takings measures on the ballot.
Perhaps most galling, the 2006 ballot measures masqueraded as grassroots rebellions when they were anything but. The vast majority of funding came from a single individual, New York developer Howie Rich, who went to great lengths to launder his money through shell organizations. His goal appears to be viciously simple: eviscerate local government and community planning. The Howie Rich angle is much too complicated to explain here, but hard-core conspiracy lovers can find plenty to keep them occupied here and here.