TCS Daily

Kelo's Backlash: Imminent Success?

By Bert Gall - July 7, 2006 12:00 AM

In his June 29 piece, ("Unhappy Birthday, Kelo"), Pejman Yousefzadeh asserts that "[t]he year after Kelo has largely seen anti-abuse forces fail in the political arena to organize any kind [of] meaningful pushback against the dangers posed by the Kelo ruling. Despite grand promises of a backlash, one has just not come about." This pessimistic assertion is baffling because it simply can't be reconciled with reality. In fact, the Kelo backlash isn't just alive -- it's thriving and producing results that can only be described as historic.

Yousefzadeh cites the abstract of a paper by Timothy Sandefur of the Pacific Legal Foundation, which says that 15 states have passed reforms. However, as of July 3rd, the number of states that have passed reforms has grown to 25 -- out of 45 states that had legislative sessions this year. And, it is possible that, in the next month, that number could grow to as high as 29. That's a pretty impressive batting average for a backlash in its rookie year.

For those who continue to lament that the Kelo backlash hasn't accomplished enough -- either because the laws passed aren't "good enough," or because total success hasn't been achieved in the span of one year -- a sense of perspective is the proper tonic.

First, consider where state laws stood the day the Kelo decision came down: in most places, they were flat-out horrible. In all the states that have passed reforms, the situation has improved -- often dramatically. For example, in 14 states, new laws have made (or will make, after they are approved as new constitutional amendments by voters) it either impossible or extremely difficult to use bogus "blight" designations to take ordinary homes and businesses for private development. Given that the vast majority of eminent domain abuses occur through the use of those designations, that's very meaningful reform. Another common, and important, reform includes shifting the burden of proof in condemnation actions -- making the government prove that a taking is for public use instead of making the property owner prove the opposite. The bottom line: most reforms that have been passed are far from "toothless," and all of them represent an improvement (sometimes small, but more often large) from a terrible, pre-backlash baseline.

Of course, more work will need to be done next year in those states that did not pass reforms, as well as those states whose reforms are incomplete because of exceptions or loopholes. However, a survey of the political landscape reveals that there is still strong momentum for further change in the states next year. (As demonstrated by Alabama, which recently enacted meaningful reform of its blight laws after initially passing legislation immediately after Kelo that failed to do so, there can be more than one bite at the legislative apple.) The vast majority of Americans are still upset about the Kelo decision, and there is a broad coalition of groups from across the political and ideological spectrum -- including groups such as the NAACP, the National Federation of Independent Businesses, the National Council of Churches, the League of United Latin American Citizens, the Farm Bureau, and the Mexican American Legal Defense and Educational Fund -- that is poised to build upon the successes of the past year. That coalition continues to fight in the Senate for the passage of strong federal reform legislation. Last year, legislation that would cut off federal economic development funds for two years to state and local agencies that abuse eminent domain cleared the House by a strong bipartisan vote of 376-38. Also, in addition to winning eminent domain battles at the local level and working to forge statewide coalitions, activists have placed, or are close to placing, reform initiatives on the ballots of states such as California and Nevada.

Those who discount the Kelo backlash because it has not yet changed every states' laws should keep in mind that large-scale reform movements almost always take several years -- if not decades -- before they completely succeed. Judged by that standard, the backlash has enjoyed unprecedented success -- especially when one considers that the beneficiaries of eminent domain abuse, cities and developers, have fought tooth and nail to maintain the status quo.

Were cities and developers emboldened by the Kelo decision to abuse eminent domain for private development? You bet. But that's only half the story of this past year. Their boldness fueled a mighty backlash that has produced the successes catalogued above, and the momentum for more in the years to come. To be sure, this is no time for advocates of reform to rest on their laurels; however, it's also not the time to fall prey to unwarranted pessimism.

Bert Gall is a staff attorney with the Institute for Justice, a public interest law firm.


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