WASHINGTON, D.C. - Remember Mr. Smith proclaiming that lost causes were the only ones worth fighting for?
Even without Jimmy Stewart's comforting
drawl, that sentiment strikes a chord. Who can resist the charm of
the loser who does not quit, the true believer who persists despite
the disapproval of the multitudes?
In that light,
consider the champions of what is known as "takings' legislation.
The bill they support will not be enacted; by all evidence, a large
majority of the public would not want it enacted, so fighting for
it is politically dumb.
Yet onward goes the
battle. It is a matter of principle. It is that old "never-say-die"
outlook. It is noble, poignant and heroic.
maybe it's just the money.
The bill, officially
known as the "Private Property Protection Act," would overturn
several hundred years of Anglo-American legal thought and practice
by redefining the meaning of "taking."
definition is now and has been that government must compensate
private landowners when it actually takes away their property - to
build a road, for instance. There's no dispute about that. It's
right in the U.S. Constitution's Fifth Amendment, the one you can
invoke to avoid testifying against yourself, which then adds, "nor
shall private property be taken for public use, without just
On a few occasions, the U.S.
Supreme Court has ruled that a "taking" occurs even when the land
remains in private hands. If a regulation denies an owner all, or
almost all, of the economic value of the property, the government
has to pay compensation. But these are special cases. As a
unanimous Supreme Court recently noted, "mere diminution in the
value of property, however serious, is insufficient to demonstrate
Not under the bill in question.
Should it become law, landowners would have to be compensated when
federal regulation diminished a property's fair market value by 50
An earlier Senate attempt would have
required compensation if property values fell just 20
The change is obviously meant to render
the bill more palatable. But it didn't, and in late July, Majority
Leader Trent Lott said the bill would not be brought up, at least
not before the August recess.
One reason the
switch from 20 percent to 50 percent didn't work is that the change
was more cosmetic than real. What did not change was the provision
allowing property owners to seek compensation for an "affected
portion" of their land. In other words, if you own 10,000 acres and
a regulation applies to 50 of them, you could demand compensation
if you could show that the market value of those 50 acres would be
diminished by 50 percent.
Many is the property
owner who could argue that the local zoning code, the Endangered
Species Act or various anti-pollution or wetlands protection rules
reduce the potential value of some portion of his land by half. If
he can't build as many houses or cut down as many trees, he can't
make as much money. Nor can he sell the property for as high a
The bill also opens up the question of
just what constitutes "private property," in a manner particularly
applicable to the West. It states that government action which
could reduce "rights to water" would call for compensation to the
individual who was getting the water.
stands now, most Western water users are getting the stuff at
below-market rates, subsidized by the taxpayer. Under the
legislation, a decision to withdraw that subsidy would constitute a
"taking" of private property. It is not clear whether federal
grazing leases, equally subsidized, would also be considered
private property, requiring government compensation to any rancher
ordered to reduce an over-grazing herd. But no doubt the point
would be argued.
It would probably be argued by
the National Cattlemen's Beef Association and the Sheep Industry
Association, two of the many natural resource industry groups
fighting hard for the legislation. Takings has very little popular
support, but there is a great deal of money behind it. Political
action committees which support the bill reportedly contributed
$672,654 to 10 Republican senators last year, and more than $1.7
million to Senate Judiciary Committee members between 1984 and
It's easy to see why so many ranchers,
miners and loggers are so enthusiastic. They'd love to be free of
regulation. There's a bit of mystery, though, about the bill's most
energetic supporters - the real estate industry. The big
developers, to be sure, have as much to gain as the big farmers and
timber companies. But it's generally considered poor business to
offend your customer base, and there is one very important
constituency that could be badly hurt should these proposals ever
become law - homeowners.
If you own a home, the
zoning that prevents a developer from putting up a factory next
door, like the regulation which prevents the nearby stream from
stinking with pollutants, does not threaten your property rights.
It enhances them.
Most Americans are homeowners,
but together they own a tiny percentage of all privately owned land
in the country. According to a study of figures from the
Agriculture Department, 78 percent of all privately owned land is
held by just 2.6 percent of the nation's
This basic arithmetic explains why
milder statewide versions of the federal takings bill were
overwhelmingly rejected in referendums in Arizona in 1994 and in
Washington state last year.
In fairness, it
should be noted that the opponents - environmentalists,
good-government types and assorted liberals - prevailed by using an
argument which is a touch disingenuous. The proposed takings laws,
they said, would be "budget-busters." They would lead to (gasp!)
Not really. Such laws would cost
billions only if the governments subject to them went ahead with
regulations and paid the compensation. But that wouldn't happen.
What would happen is that there would be precious little
Which is precisely what the takings
faction intends. Charles Fried, a solicitor general under Ronald
Reagan, saw this coming in the early 1980s: "Extreme libertarian"
activists, Fried wrote, "had a specific, aggressive and it seemed
to me quite radical project in mind: to make government pay
compensation ... every time its regulations impinged too severely
on a property right ... If the government labored under so severe
an obligation, there would be, to say the least, much less
Too little even for a conservative
such as Fried, or for a great many Republican senators from the
eastern half of the country. Along with almost all the Democrats,
those Republicans will probably block the bill should it come up
this summer. If by chance they do not, President Clinton can be
expected to veto it.
Why, then, do its proponents
push on? Well, no doubt they believe in their cause. They're also
in this for the long haul. Passage may be impossible now, but what
about 10 years hence? No one can be sure, and the people who would
benefit from takings legislation would make so much money from it
that the money being spent to push the bill is relatively
Which is feeding a lot of chickens.
More than ever before, legislation and government have become
businesses. There are now enough people making a living as
lobbyists and political advisors to distort the process they are
trying to influence. One result is that as long as someone is
willing to keep putting up some bucks, an issue will never die. The
pollsters and advertising agents who earn their bread and their
BMWs by pushing legislation double as the consultants who advise
their clients whether or not to keep trying.
creates what economists might call a marginal propensity to
persist. Like many another cause (including some on the
environmentalist side), "takings' has spawned a small but
Could Frank Capra have
made a heartwarming movie out of
Jon Margolis studies