Monday, March 27, 2006


Ballot initiative 152 is anti-democratic

Ballot 152 is a proposed initiative that would change the rules of eminent domain so that a property owner could receive compensation if the value of the property diminishes because of a government regulation. Does this argument sound familiar? It should! It's the same argument Canyon Resources Corp. used to say it deserved compensation for its property after the ban on cyanide "heap-leach" gold mining was enacted in Montana. So...after the citizens of Montana got together and decided -- in two separate elections -- that heap-leach mining should not be performed inside state borders, the mining company wanted its money for the loss of value on its property. Luckily the SCOTUS thought this a foolish argument and refused to hear Canyon Resources' plea. In effect, if the mining corporation did get its money, it would overturn the ban. The state can't afford to recompensate all businesses for income lost because of regulation. If 152 passes, that would mean an end to state regulations. That means that our representatives and our ballot initiatives would no longer have the power to decide the operational standards for business in our state. Update: It looks like Budge is unequivocably in favor of 152, which doesn't surprise me. Seems like those that favor "free markets" also feel disdain for the electorate. That is, business is a better and truer vehicle for free societies than democracy. I can't help but feel that these neo-libertarians that decry government and big corporations in the same breath take their position largely because it's against everything those on the left and right believe in. In other words, it helps them feel right or honest in a world where all the other positions have been compromised at one time or another. But let's face it. This free-market ideology is about as realistic towards the marketplace as neoconservatism is towards foreign policy. Left unfettered, business prefers to conglomerate and build monopolies that eliminate competetion, so that their profits are predictable and safe even if their products are inferior. In other words, the free market is self-defeating. Government works when used as a check to the power of large corporations. Remember: our forty-hour week and two-weeks vacation (not to mention child-labor laws) were not enacted as a result of market forces, but rather by workers' groups allied with political parties to enact legislation. Maybe I just don't understand what a "free market" is. In any case, initiative 152 would remove one of the few tools Montana's citizens have to decide for themselves how their communities should look and act.
I like Budge (he's kinda amusing) but he's also got the thinnest skin of any online pontificant I've ever encountered, save maybe Captain Ed. He will brook no disagreement because it's really all about him. You actually explain that, touchstone, without really explaining why. The why is simple ... he can't be wrong.

In this case, he's very wrong. I suspect that he's awaiting the reply to be at his place (it's really all about him, you know) but should he respond here, expect this:

1) You're overstating the possible negatives. In truth, you might be overstating the negatives of intent behind the initiative, but not at all the result. Anyone who feels that they have suffered loss of income due to controls imposed for the greater good will be able to sue for recompense.

2) Budge actually thinks that that's fair. No, no it's not. If goverment regulation takes away my livelyhood, then they must compensate me. But if, as we have here in the Bozone, a developers group buys a chunk of property with the expected resale of X, and the county deems that harmful to the growth of the area and so prohibits further strain on resource, then I must compensate profiteers because the county says that enough growth has a different impact than was previously established? That's not fair at all. 152, as written, says that I elect my county commissioners to rubber stamp speculation, or must compensate the bad bet laid by developers. Our Republic is supposed to give us a voice. What is unfair to give business interest the right to profit by betting on what that voice will be ... and to compensate with your and my money. (Fiscal libertarian, my ass.)

If he responds over here at all, I'm sure he might come up with a few more bogus arguments; after all he's a smart guy. But don't expect him to admit the obvious, that this initiative is just a poorly thought out appeal to fear and emotion.
Touchstone, Wulfgar, the authors of this initiative full well know their intent. The initiative is modeled completely on Oregon's recent Measure 37. The people who wrote Oregon's measure actually made clear that Montana was one of their targets after finding victory in Oregon.

The purpose of this measure is not really to allow for compensation for people, it's to overwhelm counties with requests for compensation or waivers and to basically get all land use planning measures gutted.
You're right, I'm for it. But you should read the proposed amendment a little closer and understand that it cannot be opposed retroactively. It only affects those cases where regulation was passed after the amendment goes into effect.

But you lack a greater understanding of libertarianism and exactly what it means as far as democracy is concerned. Democracy in its purest sense was rejected by the founders because it neglects minority rights and makes possible for a majoritarian tyranny. Hence the Bill of Rights and republican form of government that we have.

The reason that I support the ballot initiative is because it forces upon lawmakers the requirement to understand for who and to what extent a regulation hurts bystanders. That's why I support it and it has nothing to do with free market economics. It's a check to safeguard the minorities interest.It doesn't remove any "tools" at all. It simply makes the argument for or against any rule broader in its consideration. You want a restritive covenent? You have to pay just compensation for it.

It appears, however, that you collectivists don't often consider individual rights beyond your clap about the NSA and abortion.

But what do I know about protecting the innocent bystander? I just a duck.
That's it! You're banned!

Just kidding.

I am fully aware of the Bill of Rights, Mr. Budge. I recognize the rights of minorities and agree that any democracy needs guarantees against majority opinion to respect the rights of individuals.

That said, I don't believe government should pay investors for lost profit based on changing regulation. The taxpayer shouldn't have to bear the burden of risk for capitalists.

The marketplace is unpredictable, and a land speculator should be familiar with the place she's buying land. That Missoula is hostile to sprawl should be obvious to a Missoula investor. That local citizens regard a mining process that's hurtful to health and the environment as dubious should be obvious to a mining company using cyanide.

There is one provision I do like in the new initiative, and that's the one that says private property shouldn't be given to another private owner. I don't think eminent domain should be used as a tool to enrich developers, either.
On the prohibition on the use of eminent domain by private entities, I'm awfully curious. Does that include condemnation by private utilities and mining companies?
It only affects those cases where regulation was passed after the amendment goes into effect.

Dave, for one who lives in Bozeman, that is entirely the fricken point. Land use abilities are established by precedent. Developers move in, and speculate that they will have the same grant of use given. The Commission deems that use has overwhelmed resource and suddenly, you have an I-152 lawsuit. Guess what, as a resident of this county, I'm screwed either way. I either accept the abuse of avaliable resource or pay off the speculators who played the law. This is exactly what I-152 promotes. They win, and I pay.

That's stupid fricking law. You can claim "individual rights" all you want, but this law does nothing to protect landholders from HOAs and yet will protect HOAs from county governance. You haven't thought this through, Dave. Try again.
Listen, I'm not in favor of anyone profiting on the governments back. Let's use Wulfgar's argument for a minute. If a group of speculators buy land zoned for housing and the city decides that its bad for growth management has not the investor group been harmed by the re-zoning? did they not buy the land in the open air under existing law? should they not have the expectation that the status of the law should remain with some consistency?

Let's take Wulfgar's house for example. Recently a micr-pub was built across the street. Let's assume then the the village decides to rezone the neighborhood for heavy industrial use that makes his home worth 50% of the value of when it's zoned residential. I think Wulfgar has a reasonable expectation that he won't get screwed by re-zoning and the lawmakers need to consider Wulfgar when they make such decisions. Is that unreasonable of me to think that they should?

Wulfgar goes a bit too far in his job analogy though because jobs are not property. But I'd say that if you lose a job because of a somewhat arbitrary change in regulations - such as zoning - it's unfair to the job holder but more unfair to the owner of the business.

If the collective wishes to impose its will that's fine. I have no objection to succumbing to the a majority consensus. But I have a big problem when the consequences of those decisions are fully vetted.

Should I expect less of "the democratic process?"
PS - sorry for all the typos - you get the point.
But the point you miss, Mr. Budge, is that the landowners have recourse to affect the democratic process. They can weigh in on the debate, lobby officials, run editorials, etc. They are not powerless in the debate.

I agree whole-heartedly that the CT land-grab (obliquely referred to in your site) was a terrible misuse of eminent domain and was appalled that the SCOTUS ruled in its favor -- that's why I like the provision that the government can't seize land to give to another private owner.

That said, I'm with Singer. The legislation would bog down claims so much that government wouldn't be able to regulate anymore for fear of lawsuits. Like it or not, regulation is a vital tool in mananging commerce in communities.
I class myself as a libertarian and I completely agree with Matt and Wulfgar on this one. It’s the government’s responsibility to enact laws that reflect the will of the majority. Government regulation will undoubtedly impact on both individuals and businesses because that is its purpose. To argue that the government should compensate business for undertaking its fundamental democratic responsibility is bizarre.

The idea of a free society is that government makes the ground rules by which businesses (and individuals) must adhere, and then people are able to operate freely within these governmental constraints. Think of the precedent this bill will create. Nearly all businesses are impacted by regulation one way or another; be it environmental protection legislation, capital requirements for financial institutions or even anti-monopoly regulation. Add to that different tax treatment available to various industries, farm subsidies, and a host of other legal and regulatory restrictions and you can see that this bill will make it impossible for the government to change anything because of the threat of litigation.

I don’t think that Budge is a “free-markets” person, more a “pro-business” person; and there is a fundamental difference. Like many Republicans, I’d class his as a whore for big-business as opposed to a true believer in small government and a free-society. Besides which, where is this compensation money for business coming from? The tax payers. What Budge is suggesting is that the taxpayers underwrite essentially an options contract on the regulatory risk faced by all businesses. Small government man, my arse.
Touchstone, you take a leap of faith that the landowners have the real resources to affect the demographic process. Does Wulfgar have that power vis a vis large wealthy interests in my hypothetical? I doubt it.

And the thing that many seem to forget is the the imposition of new regulations cuts both ways. Let's say that the property across the street from Wufgar's house is being rezoned because the industrialist took all the men on the city council out for hookers and drinks and talked them into a zoning change to set up his dust spewing cement plant. Who's there to protect Wulfgar?

And what about the guy who has a small farm that is becoming increasingly close to the city and some group of developers want to restrict his farm for development so they can get higher prices out of the property they are developing. Does he have the muscle to fight these guys. The developers might package the whole deal under the heading of "open space."

Sure the law will clog things up until such time as ancillary legal precedents can be established. You'll have a hard time convincing me that more little guys haven't been screwed by big money influencing local government than anything else. This protects the people who are most often screwed.

It will be messy in the beginning if its passed. It will be a good check on government power when the dust settles.

No surprise that you're with Singer on the issue. Democrats have a tendency to want to use government for "the greater good." The problem is that government bodies change from left to right and right to left.

ps. Thomas, I'm not a Republican and I don't see in your language much libertarianism. But maybe I'm wrong.
Well you can class me as whatever you like, Budge. What you are proposing is a taxpayer funded compensation scheme for business. This is not a “free-market” concept in any way, shape or form.

Think of this in terms of an options contract. There are large levels of uncertainty surrounding any business venture; commodity prices, market conditions, competition, legal and regulatory risk as well as a million others. What you are proposing is a situation whereby if government regulation helps a business, all is well; but is government regulation hurts a business, they must financially compensate. This “heads I win, tails you lose” situation is exactly like the contingent payoffs from an options contract. What you are proposing is that taxpayers essentially purchase an options contract to underwrite the business risk of each and every business in the state.

Matt is right in saying that this plan is just a measure to create government inertia; hamstringing it from ever passing any law that could every effect any business. They way I read this, an argument could be made to enshrine protectionism over free-markets. Wouldn’t an inefficient farmer have the ability to sue the government if they removed his artificial protection from the free market?
OK – now I have read more about this issue I am unclear as to whether it is just about land-rights or all government regulation.

Can someone please enlighten me?
Thomas, are you from Australia? I'm just wonder what, if any, dog you have in this fight.

I assume you're welcome in the debate - at least you are by me - but your Blogger profile confuses me a bit. I'm easily confused.

I am from Australia, and I haven’t updated my blogger profile so I’m not sure what it says. This is my blog, although I have recently let some co-bloggers join me. I post under the name Thomas.

You are correct in saying that I should have absolutely no democratic voice in this debate, as I’m not from Montana. I am merely putting in my two-cents worth in on this argument as I found it interesting.

I am a huge fan of the US system of government, and an avid reader of US history; hence my interest in US political blogs. Philosophically, I find myself more attracted to the US than to any other country on Earth, including my homeland.
Dave, you're content to leave a woman's body up to the right-to-left and left-to-right process. If a woman's body shouldn't have the protections of some legal consistency, I'm hard pressed to understand why every property action should have the protections of complete legal consistency.

Thomas -- it applies to most regulation, but land-use restrictions is the main aim of this type of legislation.
I would have to agree that this is a very poorly thought out initiative and should not be allowed to pass. If the property speculaters want protection for thier speculation, have them propose stricter requirements for zoning changes, ect. I cannot support a government subsidy for those taking a risk on property speculation.

As far as the examples used (those of zoning changes), having been through a zoning change, it simply isn't as easy to do as Budge would like you to believe. A concerned effort on the part of property owners often results in an ill planned zoning change being thwarted. The extreme example (where the county commisioners were wined and dined for a favorable zoning change) simply defies common sense. Even in some fantasy world where that actually occured, you could simply impeach the commissioner for malfeasence. Get a clue and don't allow this initiative to pass. I personally do not want to subsidize every crackpot business speculator in Montana with my taxes...

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Your timing is impeccable, Thomas

I love the idea that you were birthed into existence on Wednesday, March 22, 2006 with a very narrow mindset that exactly mirrors that of the upper echelon of the American government.

I really love the idea that you randomly chose our little corner of the world to camp yourself in when the GOP is headed out with it's pissy little tail tucked between it's legs.

A dim bulb by another name still reeks the same.
Well, I’m confused anonymous.

I started my own blog in September last year, and have only very recently (last week) installed a site meter. Any look at the “Archives” section of my blog would have told you this.

Furthermore, I can’t for the life of me work out why you think that I somehow parrot the message of the Bush administration. Any cursory glance through my archives will clearly show that this is simply not the case. In fact, as I have stated numerous times, I think the Bush administration is filled with incompetent morons. You’ll also note that I personally comment very rarely on issues outside Australia. Also, if you read above, you’ll find that I am OPPOSED to the Republican backed proposition, and support Matt and the other progressives on this particular issue.

Why are all lefties crazy moonbats?

How did I come to this little corner of the world? Simple. I followed a link from the Daily Kos website (you know, one of the largest political blogs on earth) to Left in the West, where I occasionally comment. They linked to this article in a recent post.

Please take off your tin foil hat, mate.

Oh, and thank you for notching up another number on my site meter!

I'd like you to show me where I have ever taken that position on abortion. I have, if I recall, advised pro-choice groups to pre-emtively get state law passed to make abortion legal. I may have debated the right to privacy on theoretical grounds. I may have debated that the issue might be better decided at a state level (as is this law) given my bias toward federalism.

It seems strange to me that you would say that would allow incosistancy in that inasmuch I don't recall ever taking a postion on the subject.
Sorry, Dave. I didn't realize state legislation was free from left-to-right shifts. I forgot your preemptive legislation is also locked in for the long-term.

And I would be referring to this statement that you make: "Since some contend that basing abortion on privacy rights is specious (including Ginsberg and Lawrence Tribe) then why not make the right to abortion legislative? After all the right to privacy is neither absolute or absolutly defined. It’s a poltical discussion we need to have to finish the argument. That, however, would take balls on the part of our elected officials."

Granted, I overlooked later in the thread where, after something like 12 comments saying that the right to privacy is specious that suddenly you would never advocate overturning Roe.

Maybe I misunderstand your political philosophy. From what I can tell, you disagree with Roe, but want it to stay in place, but never engage in intellectually shallow arguments, and criticize others for being disingenuous.

My apologies for not fully understanding the amazing complexity of these views on first blush.
Beloved readers! Anybody can post on this blog, and anybody can have an opinion, even if they're from the other side of the planet! Thomas is welcome to post, comment, and judge our ballot initiative 152.

This blog may focus on Montana, but essentially it is a blog for humans.

Carry on. Tho' a tad quieter, the neighbors downstairs are complaining.
Matt, I'm glad you cleared that up.

If you'll look around a bit you'll find that I have stated that I would support a Constitutional amendment that codifies our rights to privacy - given the disagreement on what that means by constitutional scholars. Lacking the initiative to search for it now, I'll make this the official record stating such. I would also like support some version of an amendment or law that codifies a women's right to abortion given some minor restraints on late term abortions. But all that is another argument. On the other hand I think the issue is highly complex and I would like a great deal more debate on the issue in state legislatures in order for the citizens to accept it as public will.

But I hesitate to defend my position much being as thin skinned as I am.

I've taken my position on I-152. We'll see how many others agree with me in November.
I've taken my position on I-152. We'll see how many others agree with me in November.

Dave, this is precisely what I meant with the thin-skinned comment; you do not brook disagreement, and when it's offered, you seek validation elsewhere. Even if the majority "agree" with you (or are duped into agreeing with you) it doesn't/won't make you right. It is possible that your position is wrong, and needs to be changed.

You claim that I brought up a "job analogy". Uh, no, no I didn't. I'm not sure what you're getting at with that, unless "developer" is now a job as opposed (exclusive) to being a speculative owner.

Also, though it is trivial to the discussion, it might amuse those here to find out that my house, and all the businesses on the other side of the street, are actually zoned M (industrial). Why my house and not the neighbors is zoned as it is is a long story I won't recount here. But the nature of the neighborhood is changing, and has been for a long time.

What is germain to the discussion is this: about 4 years ago, some asshat carpetbagger from Billings wanted to build a 200' comm tower about 250' outside my front window. He had the deal with the property owner and was well within zoning. However, the city council deemed (somewhat because of comments by a "Bob Kelly", according to the awesome Bozeman chronicle) that the tower might negatively impact the area in value, aesthetic and use. If I-152 were in place, then the city would have been liable for damage, not from the tower builder, but from the property owner losing on rent of the space. It was the right decision for the city, but under the aegis of I-152 it would have been out of the city's hands because of previous zoning.

Your own examples concerning my residence, Dave, show exactly why this is bad legislation. It removes any dynamism from the nature of public will and individual right. What is set as precident will become rigid, and thereby playable. Look at the language of the proposal as written. The owner of the property zoned for industrial use could make a deal to put up a concrete plant across the street from my house, and if the city says no, could be compensated because he was deprived of fair and previously established use. Would the concrete plant be a disaster for just about everybody (save the landowner) in this part of town? Yes! But the landowner holds all the cards. Current law says that the city can review, with public comment, all proposed changes to even industrial use properties, but there must be a legally reviewable reason for all concerns being met. I-152 gives landholders the ability to game the system by removing the review of all concerns. Adjacency becomes the will of the state, as opposed to the will of the people, and thus it is actionable for compensation; and that just takes this initiative way too far.
Saying that I've taken a position and we'll see who joins me at the ballot box is being thin skinned? Might one consider that I've come to the realization that I won't change any minds in this venue so I call it time to move on? Is that thin skinned? Is it fair of me to assess the risks differently than you regardless of how obtuse you perceive my assessment to be? I'm just askin'. What, then, can I say that doesn't offend your sensibilities?

So we disagree (and me without a single pejorative too) but it seems that even before I posted my first comment you asserted that, whatever I wrote, it would be "bogus." So since my opinions hold a predetermined value in your mind should I be eager to debate? Or is your point that we debate until you prevail?

Would you be willing to concede some validity to my concerns if I conceded to some of yours? Would it make a difference in your vote? or mine? Is it possible that we have such a fundamentally different view of government's role that we cannot reconcile? Is it possible the either of us, or both of us, could be wrong? I'll accept that I might be wrong - but you haven't convinced me yet.

I could argue each of your points - line by line - but it just seems so futile since my thoughts hold such low value in your mind.. What's the point? You're as intransigent as I am but, somehow, that makes me wrong, thin skinned, arrogant and egotistical.
Dave, every single time I've agreed with you, you have clarified that you know more and are willing to concede less. Every single time someone has disagreed with you, you launch into rediculous tangents in which you cannot be wrong, but often have little to do with the main point. If you feel frustrated then welcome to the world of those who deal with Dave Budge. That is precisely why I chose to make my stand here rather than at your website, because dealing with you there is irritating and hardly worth the hassle.

I've already said, in many venues, that I admire your thoughts, but yet you focus on the fact that I point to an obvious weakness you exhibit. That's exactly my critique, and I thank you for proving the point.

The arguments you have proffered are bogus, precisely as several have pointed out, and I predicted. Yet somehow, my prediction of said is a flaw in my argumentation and not your lack of support for your position? That's hardly reasonable. It's an appeal to feelings of human sympathy, that somehow disagreeing with you is distasteful and unsavory. You pull that crap all the time, Dave, and I'm well over it.

On the point at hand, I would be well eager to concede any validity if your argument had an ounce of it. You bring up my personal situation as if a) you knew what it was, and b) you could use it to make your point. Your point fails on both counts. I-152 would stand against me in either the cases you bring up, or those I counter with. If you choose not to debate that then I must wonder: is it because you are truly frustrated with my derisive tone, or because you have an untennable position? I think the latter.

Finally, Dave, you haven't "offended" my sensibilities. You have, however, convinced me that arguing with you is a tricky proposition, given our particular pathologies. You claim personal offense at the drop of hat and that sets off every preditory instinct I have. Not a great situation at all. Trust this, I do like you, and respect your mind. On this issue, we disagree strongly. Call it personal if you like, but I know you're just plain wrong as regards I-152. The fact (if) others will agree with you will not validate your position, it will only validate your feelings about the position you've taken. If you really believe yourself to be correct, then I'm certain that you could offer better argument than an appeal to the will of the majority as validation of your position.
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