Posted by: Lisa Pampuch | May 27, 2008

Civil liberties trump rent control

“A fundamental interdependence exists between the personal right to liberty and the personal right in property.” ~ United States Supreme Court Justice Potter Stewart

I’ve heard from some readers about Proposition 98, which I endorse as the only real eminent domain reform on the June ballot, wondering why I support it even though it would eliminate rent control.

Here’s the relevant language from Prop 98:

“Private property may not be taken or damaged for private use. … “Taken” includes … limiting the price a private owner may charge another person to purchase, occupy or use his or her real property.”

I understand, philosophically, why the sponsors of Prop 98 included rent control in the ballot measure. They view rent control and eminent domain as so closely related that they couldn’t resist the temptation to eliminate both eminent domain on behalf of private parties and rent control with one proposition.

I wish they had resisted.

From a practical, political standpoint, I have to believe that it would be much easier to pass Prop 98 without the rent control language. By including the rent control language, backers of Prop 98 have a much more nuanced argument to make to voters.

It’s always difficult to sell nuanced arguments in 30-second sound bites, which, sadly, is the way most voters decide how to cast their ballots.

Including rent control also gives ammunition to opponents and allows them to take the focus off eminent domain in the campaign.

Second, I don’t see rent control and eminent domain as two peas in a pod, and thus, I’d prefer to have the rent control debate completely separate from the eminent domain reform debate.

Opponents of rent control make lots of strong arguments against it. A Journal of Housing Research study by Dick Early and John Phelps found that rent control policies increase rent in non-rent controlled units and reduce the supply of rental units, thus driving prices higher. In addition, they found that once rent control is repealed, it takes two or three decades to undo the damage to the community’s rental economy.

These are compelling arguments that I’d like to explore on their own merits, not tied up with a ballot measure on eminent domain reform.

However, I don’t have that choice. Instead, I must choose between Prop 98, which eliminates all eminent domain on behalf of private developers, and Prop 99, which doesn’t even come close.

That’s because Prop 98 applies to all real property without regard to use or owner-occupied status: homes, apartments, churches, farms, businesses, open space, you name it.

However, Prop 99 applies only to owner-occupied homes. It also provides lots of loopholes so that even owner-occupied homes can be taken from their owners and sold to other private parties.

It’s important to remember why eminent domain reform is so important.

Eminent domain, the power of the government to force the sale of private property, was dangerously expanded by a lamentable 2005 United States Supreme Court decision in the case of Kelo v. New London. Homeowners sued when the city of New London, Conn., attempted to force them to sell their properties so it could revitalize a neighborhood with a pharmaceutical research facility, other commercial facilities, and residential development.

The justices ruled that governmental agencies can force the sale of private property on behalf of other private entities if it enhances the public good. Before Kelo, eminent domain was only constitutional when used for public purposes, like roads, schools, or sewer plants.

In 2006, California voters narrowly defeated Prop. 90, another eminent domain reform measure. It was the victim of deceptive advertising and fear mongering by its opponents.

Fast-forward to 2008. Groups enjoying nearly unlimited eminent domain power are working feverishly – through associations like the League of California Cities, the California State Association of Counties, the California Special Districts Association and the California Redevelopment Association – to keep that power on two fronts: Campaigning to defeat Prop 98, and splitting the vote by supporting do-nothing Prop 99.

Civil liberties – like private property rights, free speech, religious freedom, free press and more – define America. For me, protecting civil liberties is more important than protecting rent control.

That’s why I’m supporting Prop 98 and opposing Prop 99. I hope you’ll join me.

“The dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights.”
~ Potter Stewart


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