2018 Election, Elections, Land Use, Politics, Property rights, Sean Paige

Closing arguments in favor of Amendment 74

Sometimes you hear it said in America that “you can’t fight city hall,” which suggests the sense of futility many of us feel when confronting ever-growing government power at the local, state or federal level. But Coloradans could soon have a better chance of not just fighting City Hall, but maybe even winning a few rounds, if a property rights protection measure called Amendment 74 wins voter approval.

There’s a reason why this is the most misrepresented, unfairly-maligned item on the ballot. It scares the daylights out of The Powers That Be in your city or county government, because it will fundamentally change (and, in my view, improve) the way they regulate, just as Colorado’s Taxpayer’s Bill of Rights (TABOR) fundamentally changed the way they tax and spend.

If approved, Amendment 74 will require governments to compensate individuals or businesses that suffer economic harm, and have their property rights trampled, as the result of a “regulatory taking.” By leveling the playing field between citizen and City Hall, between the regulators and the regulated, 74 will help provide a measure of justice to those whose rights and economic interests are walked-on by local governments. And we’ll all be the beneficiaries if this forces local officials to be much more careful, restrained and cost- and impact-conscious about rules they now hand out like Halloween candy.

The measure is mainly aimed at protecting mineral rights owners financially damaged by local drilling restrictions, but it might arguably apply to other proven victims of a regulatory taking. Potentially having to compensate victims of property rights violations or regulatory takings will bring an end to the era of cost-free, no-risk regulating by local officials. That accounts for the apocalyptic rhetoric we’re hearing from those who don’t want that era to end.

They would much prefer having a free hand to blithely go on regulating as they always have, without considering the economic harm they might be doing. But my personal view, as a former city councilman, is that local officials will take much greater care in crafting regulations if they could potentially have to compensate victims of a regulatory taking for economic damages.

Paying compensation for a government “taking” is not a novel concept, though it’s most often narrowly confined to the physical taking of a property or building through the power of eminent domain. When such a “taking” of private property occurs, we all agree that the only fair and constitutional thing to do is to compensate the property owner for the loss. So why shouldn’t the same principle and practice apply when government takes actions that similarly harm property owners, albeit through regulatory controls rather than a blatant land grab?

We all know what an eminent domain “taking” looks like because a property changes hands (often without the owner’s consent) and a wrecking ball is often involved. Regulatory takings are much harder to see in action, arguably making them even more insidious and unfair. No bulldozer is involved, but the impacts can be just as painful and consequential for the victims, who are easily overlooked because the damage is often done quietly, stealthily, incrementally.

This allows local officials to regulate frivolously, skirt accountability for their actions, and go on pretending that everything they do is benign, beneficial and consequence-free, which just isn’t true. Passage of his measure would change everything, and vastly improve government transparency, by making the costs and burdens of regulation on actual citizens apparent for the first time.

Critics claim Amendment 74 will create paralysis in local government, or may even bankrupt them. They fear it will invite a litigation explosion that will clog-up the courts. I believe such claims are overblown or easily avoided.

Would this bankrupt local governments? The short answer: Not if they don’t regulate in ways that invite a barrage of costly claims. Don’t act unjustly, regulate respectfully and responsibly, and you’ll greatly lower the risk of bringing claims and paying compensation.

And isn’t that the way we should expect government to act? The fact that local officials feel entitled to regulate virtually at will, oblivious to the damage they’re doing or costs they’re incurring, highlights the need for this sort of additional citizen safeguard.

The “bankruptcy” argument at least concedes (with inadvertent but refreshing candor) that the mandates local governments hand-down impose significant burdens on citizens and businesses – burdens so heavy and costly, in fact, that those doing the regulating say they can’t afford to pay for the economic damages they do. Isn’t that a clear warning sign – and an inadvertent confession — that local governments are over-regulating?

Amendment 74 will force local officials to do a real-world cost-benefit analysis of proposed rules and regulations they never do now. This will make local officials much more attuned to the real harm they can do, and the costs they impose on others. The additional analysis and reflection will make them think twice about rules that impose high costs with little benefit. Taxpayers (as the potential payers of successful claims) will pay closer attention because they suddenly have “skin in the game.” These dynamics will improve the quality and transparency of the rules that do survive the added scrutiny, revolutionizing the way we regulate.

I’m willing to concede that more litigation might result, especially early-on, as the parameters of the law are tested in real world cases. But so what? Isn’t delivering justice for the unjustly-treated what courts are for? Are opponents really arguing that injustices can’t be fought, and local government should be allowed to regulate virtually at will, often unjustly, because any resulting cases might “clog” the courts?

We don’t quibble about the high cost of safeguarding other fundamental rights – civil rights, speech rights, water rights, due process rights, etc. – so why does “cost” become an issue only in regard to protecting property rights? That’s a troubling and telling double standard. It’s almost as if we’ve been so conditioned to view property rights as second tier rights, or not really individual rights at all, if the collective (aka local government) issues a veto over them.

Even some erstwhile conservatives have joined the chorus of critics, in a meeting of “strange bedfellows” that has left and right spouting similar talking points. We know why socialists disdain property rights. In their way of thinking, the supposed “rights” of the collective trump the rights of the individual. But what accounts for suspension of principle by some on the right?

It’s all about power, to put it bluntly. When faced with a choice between protecting your property rights, or retaining their ability to regulate at will, with zero thought to the costs and burdens they impose on constituents, they are putting their interests above your interests. It’s that simple. That’s how easily the temptations and perks of power can eclipse principle.

Critics of 74 ask us to worry more about the power of citizens to bankrupt local government, through compensation claims, than the power of local government to bankrupt citizens via the regulatory burdens they impose. That seems bizarre and backward to me, if the premise of the American political system is that government is there to serve citizens, not the other way around.

The power to regulate, like the power to tax, is the power to damage and destroy, if ruthlessly and recklessly applied — which has been an unfortunate reality in Colorado for far too long, in my personal opinion.

We compensate victims of eminent domain takings. It’s time to be constitutionally consistent by declaring that victims of regulatory takings are due no less. That’s in keeping with the basic rules of fairness and justice that make the American system work. And it would be a welcome and truly game-changing development, from which everyone in Colorado will benefit, if local officials and regulators are subject to the additional accountability, transparency, and analytical rigor Amendment 74 encourages.

It’s not much of a stretch to argue that Amendment 74 would be to regulators what the Taxpayer’s Bill of Rights is to taxers-and-spenders, a truly “game-changing” tool for reining-in regulatory abuses in the same way that TABOR curbs taxing-and-spending excesses.

Sean Paige is a former Colorado Springs City Councilman and Utilities Board member. The views expressed are his and his alone.


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