I try to leave politics out of this blog, but I feel really upset about the Proposition 98/99 vote coming up here in California on June 3rd. Any non California residents feel free to ignore this unless you want to learn more about the screwy politics of this state. The Rastas may have invented the term Politrixians, but California politics seem to have perfected it.
Proposition 98 and 99 are 2 referendums to change the California Constitution to supposedly disallow Eminent Domain. The first one Proposition 98 is called EMINENT DOMAIN. LIMITS ON GOVERNMENT AUTHORITY. and the second one Proposition 99 is called EMINENT DOMAIN. LIMITS ON GOVERNMENT ACQUISITION OF OWNER-OCCUPIED RESIDENCE. So on the outset they sound very similar.
Before we even get to the differences between them…
What is Eminent Domain?
Eminent Domain is basically when the government takes private property for public use. The US Constitutions guarantees that this can only be for public use and can only be done for just compensation. Basically if they take your property they must pay fair market price for it.
Unfortunately in the past century governments have radically expanded what public use means. This is where the trickiness comes in. Local governments have come to believe taking your house and selling it to a mall developer is a public good as it could increase the tax base.
Kelo v City of New London
This whole thing was thrown into the public view a couple of years back when the US Supreme Court basically said this was valid in the court case Kelo vs New London. Where a the New London city council took away 15 homes from their private owners to give to a private developer. Not strangely there was a huge uproar about this and lots of states started passing laws to limit this kind of thing.
Eminent Domain Abuse in California
Drew Carey has made a great videos about a specific case in California, that provide a great introduction to why and how this is done in this state and good alternatives to it:
Also see this one National City: Eminent Domain Gone Wild and this article about How the New York Times forced 55 business out using Eminent Domain to build their new office.
What you can see here is that most of the victims of this are small businesses. Exactly the kind of small businesses that we like here in San Francisco. The local Taqueria, the neighborhood bar, the Filipino grocery shop and hey maybe even your local neighborhood web startup.
The Battling Propositions
All of us voters in California have hopefully been sent the official voters information guide. Which I think is a great. I have read the whole thing and you should to. If you don’t have a lot of time just read the actual texts of them which while filled with legalese is less painful than reading the patronizing rhetoric in the arguments and rebuttals.
Note, when reading it the purpose and intent is kind of like the sales pitch. The actual amendment to the constitution (coders think diff) is the text in italic. Both of these make changes to Sec. 19 of the constitution. The rest are basically implementation rules.
This was the original proposition. It provides very good and very strong defense against eminent domain abuse. No one has argued that it doesn’t. I will get to the main argument against it afterwards.
The main key clause in Proposition 98 is simply and strongly:
Private property may not be taken or damaged for private use.
The rest of it is basically definitions of what “Taken”, “Private Use” and “Public Use” means. Private Use and Public Use pretty much follow regular common sense definitions of this. The definition of “Taken” is where the controversy us.
Private property includes all private property and not just owner occupied homes. It includes small businesses, farms, apartment buildings and of course owner occupied homes. Through the virtue of their landlords being protected even renters are protected.
The people who wrote Proposition 98 added this:
(1) “Taken’’ includes transferring the ownership, occupancy, or use of property from a private owner
to a public agency or to any person or entity other than a public agency, or limiting the price a private owner may charge another person to purchase, occupy or use his or her real property.
Reread the part in bold if you didn’t notice it. This basically eliminates rent control.
Now I am personally against rent control personally and in my libertarian mind rent control is in the similar to transferring ownership. While I retain ownership, the government limits my cashflow from it and also artificially lowers the potential sales price as earnings are lower. However most people aren’t libertarians like me and would justifiably see this as a hidden trojan horse to get rid of rent control.
As a libertarian while I’m against rent control, I do think the way it was hidden in the proposition was wrong.
Anti Prop 98 campaigners have scared lots of older people into speaking out against it because of the rent control provision. If you read the campaign you might be fooled into thinking that thousands of senior citizens will be forced to move onto the streets if it gets passed:
“If Prop 98 were to pass, it would amount to economic eviction for most seniors that can’t exist without rent stabilization. Everyday we see attacks from wealthy landlords to maximize their profits off the backs of those who can least afford to defend themselves. My wife and I are concerned about our survival if Prop 98 passes. If seniors and low-income families lose our rent control and other protections that safeguard our homes, we’ll be left with nothing.” – No on Prop 98 campaign web site
This is frankly a lie they have been fed. Section 6. of Proposition 98 specifically deals with this. No one who is currently under rent control will loose rent control if they stay in their current apartment.
If you think rent control is a good idea or even if you just want the issue to be dealt with in a more transparent manner, by all means vote against Proposition 98. Just remember it isn’t just “Big Business” who are landlords. This also affects lots of “normal people” who might rent out an apartment as they can’t afford to sell it in the current market.
Who is behind Proposition 98?
Proposition 98 is paid for by big landlords if you read the spam I’m receiving daily. This is definitely partly true, but only partly so. The main sponsors are property rights groups and groups fighting excessive taxation. However small businesses who have probably been more affected than anyone else in California by Eminent Domain Abuse and their associations are also heavy supporters.
We should also remember that just because some one is “Big Business” it doesn’t mean their interests necessarily goes against ours.
This was hastily brought on the ballot by a coalition of California politicians and real estate developers. Basically the very same people who perform and benefit from Eminent Domain Abuse. It was written and worded in particularly to make sure that Proposition 98 wasn’t passed and to make it harder to pass real eminent domain reform in the future.
The basic rule is that it protects only home owners:
The State and local governments are prohibited from acquiring by eminent domain an owner occupied residence for the purpose of conveying it to a private person.
This sounds great and all, however there are 2 huge buts.
No protection for renters, small businesses or farmers
Yes, you heard it right. Your neighborhood taqueria as well as your apartment building is still fair game for developers. None of the people in Drew Carey’s two videos above would be eligible for any kind of protection.
I find it extremely hypocritical that the same people who talk about how much they love San Francisco’s small shops and restaurants are willing to remove the most basic constitutional protection these same shops have in favor of developers bringing in big box stores and restaurants as part of their developments.
No real protection for home owners either…
The thing that surprises most people about Proposition 99 is that it in a hidden way actually specifically amends the constitution to allow politicians selling blocks of private property away to developers.
Section 1.c of 99 says:
Amend the California Constitution to respond specifically to the facts and the decision of the U.S.
Supreme Court in Kelo v. City of New London, in which the Court held that it was permissible for a city to use eminent domain to take the home of a Connecticut woman for the purpose of economic development.
Most people would think that this means to disallow it. However it is pure politicians double speak. It just says that the constitution should address the issue. This it does as well in section 19 © and (d) of the amended text of the constitution.
(d) Subdivision (b) of this section does not apply when State or local government exercises the power of eminent domain for the purpose of acquiring private property for a public work or improvement.
No one is arguing with public work. Improvement though is the what we programmers would call the wild card. Their definition lists a bunch of specific cases and then leaves it open a the very end with this bit in the amendment – 19 (e) 5 :
and private uses incidental to, or necessary for, the public work or improvement.
It basically will still allow them to use “economic development” as an excuse.
The real danger of 99
You might say, well it does provide some protection lets just vote it in. It’s a fair point but I truly believe that if it gets voted in a real amendment with real protection for everyone will be very difficult to get votes in the future. It provides a false sense of security and would lull large amounts of people into thinking it’s someone else’s problem.
The amendment will also make it extremely difficult for people to defend themselves in court in the future.
The hidden knockout clause
Another slightly sneaky part of Proposition 99 is section 9 which eliminates 98 even if both are passed:
SECTION 9. In the event that this measure appears on the same statewide election ballot as another initiative measure or measures that seek to affect the rights of property owners by directly or indirectly amending Section 19, Article I of the California Constitution, the provisions of the other measure or measures shall be deemed to be in conflict with this measure. In the event that this measure receives a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety, and each and every provision of the other measure or measures shall be null and void.
So if both Proposition 98 and 99 win, 98 is to be ignored. Classic politicians move.
Who is behind Proposition 99?
It’s supporters include both politicians of both Democrat and Republican flavors as well as most other lobbyist groups out there. More importantly it has the support of large real estate developers, who depend on Eminent Domain to build their projects without having to pay market price. Their is apparently even some investigation to see if tax payers moneys have been illegally spent on the campaign.
The whole industry of professional politics depend on Eminent Domain as these are the kinds of large visible projects that they can use to show what a great job they are doing and of course for raising campaign contributions from developers.
I do think its sad that all kinds of “liberal” lobbyists like the League of Women Voters and various environmental groups are so vocally for 99. I can accept that they might be against 98 for the rent control issue, but supporting 99 is just so flatly immoral that it really does make me feel sick to the stomach. You can only imagine the political deals that are being made in the back ground for them to accept it. I grew up in and around politics and know only too well how this works, however much it still revolts me.
One spam I received from one such group who shall remain nameless said:
YES ON PROP. 99 – Real and Powerful Eminent Domain Reform with NO HIDDEN AGENDAS.
Prop. 99 would prohibit government from taking our homes to transfer to a private developer.
Prop. 99 protects homeowners from eminent domain, with no hidden provisions.
How can you seriously try to fool your supporters in such a way. It is filled with hidden agendas and provisions.
What should you vote?
You should always make up your own mind about who to vote for and not listen to me or some professional lobbyist group. Read the propositions your self. I’m assuming you like most people don’t think it’s ok to take private property to give to private developers, so I’m not even going to argue that.
If you are interested in learning more why not check out BallotPedia’s page comparing 98 and 99, they have pretty good coverage of the pros and cons and all the juicy controversy around them. This opinion piece from Victorville Daily Press also explains the facts very well.
I would urge you to vote against 99 if your analysis is like mine. I think it’s a dangerous example of the politicians playing us like fools. But then again I maybe wrong and I’d be interested to hear your analysis in the comments.
Whether to vote for Proposition 98 is simple Vote YES if you agree with the hidden rent control clause and NO if you don’t. If you Vote NO for both lets all try to support a proposition in the future that protects everyone and this time doesn’t contain any hidden clauses.
Personally I’ll be voting yes for 98 and no for 99.