A pseudonymous writer named Decius sparked a debate throughout the conservative media with his argument that this presidential election echoes “Flight 93” — the aircraft that crashed in a Pennsylvania field during the Sept. 11 terrorist attacks. In his view, voters are like that flight’s passengers. We can rush the cockpit and maybe give ourselves a chance (i.e., by voting for Donald Trump) or certainly die by maintaining our current course.
Don’t worry. This libertarian is not actually weighing in on the presidential election, although I wonder whether a guy who thinks eminent domain (for private benefit) is “wonderful” and advocates “stop and frisk” policies may be the best, last defense for the Constitution. It’s arguably better than the alternative, but are we really one vote away from doom?
I mulled this issue while following California Gov. Jerry Brown’s bill signings and vetoes as his deadline approached Friday. Here in California, we’ve long since passed the point of no return when it comes to liberal policy making. If our national election is Flight 93, then our state’s voters long ago let the plane crash into a Sonoma County vineyard.
At what point is it too late? When do those of us who believe in a limited, constitutional government throw in the towel? Here, California’s experience seems relevant. Every state constitutional office (governor, lieutenant governor, treasurer, attorney general, etc.) is held by a liberal Democrat. Thanks to a top-two primary system, our U.S. Senate race pits two Democratic candidates with nearly identical views against each other.
Hillary Clinton will no doubt win the state by 15 percentage points or more. Many Republicans fear that Democrats will gain supermajorities in the state Legislature in November, which will enable them to raise taxes without opposition. Legislative districts are so lopsided that there’s no chance the GOP can make any progress. Granted, many California GOP-oriented voters have given up and moved. Yet many of us stay. And, truth be told, we enjoy rare moments of victory, amid the stream of losses.
I’ve reported for the Spectator on some of the awful stuff the governor signed this year. Brown, whose warnings about climate change have become increasingly unhinged, early last month signed a new climate-change law. As liberal Vox described it: “California is about to find out what a truly radical climate policy looks like.” I wrote: “S.B. 32 doubles down on the state’s existing law to mandate a reduction in greenhouse emissions to 1990 levels by 2020. It requires state industries and residents cut emissions another 40 percent by 2030.”
And last week, the governor signed into law Senate Bill 1234, which creates a new state-run mini Social Security system that deducts 3 percent of most private employees’ pay. The same folks who have turned the public-employee pension system into a financial disaster are now promising to “help” manage private employees’ investments.
These two new laws will be slow-moving train wrecks. The governor also signed a union-backed bill that expands overtime for farm workers, requiring them to receive bonus pay after eight hours of daily work rather than 10 hours or 40 hours in a week rather than 60. It will dramatically increase costs in the state’s agricultural Central Valley, a region already plagued by poverty and unemployment.
This is not encouraging news. But the governor also signed one of the nation’s most far-reaching limitations on police agencies’ misuse of civil asset forfeiture. For those of us concerned about limiting government, few issues are more appalling. In the 1980s, as the nation’s Drug War began heating up, the Department of Justice advocated this ostensible means to battle drug cartels. Agencies would use civil procedures to take their cash and other assets.
It sounded good, but as two Justice Department officials who helped develop the program argued in a 2014 Washington Post op-ed, “Over time, however, the tactic has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.” Because police agencies don’t need to gain a criminal conviction against the owners’ property, they have become increasingly creative in their efforts to take cars, homes, cash, and other property without providing due process.
Legislators overwhelmingly supported Senate Bill 443, which mainly required an underlying conviction before taking property, but then the law-enforcement lobby derailed the measure. Their main argument was they would lose too much revenue. Ultimately, civil libertarians reached a compromise with law enforcement — banning the taking of all property, and of cash amounts below $40,000, without a conviction. But the measure still allows cops to grab larger cash amounts — more likely to be the proceeds of drug cartels. The bill limits the ability of local and state officials to bypass tougher state law by partnering with the feds.
On Friday, the governor signed the measure. This is a serious, bipartisan reform. It makes real progress and will be a model for other states, including many “red” states that aren’t too concerned about the Fourth Amendment. I bring it up in detail for this reason: When we decide all is lost and the plane has crashed because a terrible candidate has won an important election, maybe we’re less apt to stop fighting these kinds of battles.
The governor also signed into law the “right to try,” which allows terminally ill patients to break the Food and Drug Administration logjam and try experimental drugs that have not been fully vetted. In a free society, one shouldn’t ever need the government’s permission to do this. But we don’t live in a truly free society, but we fight anyway. This little win will mean a lot to many sick people who aren’t ready to give up their fight.
The governor signed a law deregulating granny flats, which is a minor first step in our battle to make it easier for builders to increase the housing supply and therefore decrease the unconscionable housing prices common in coastal cities. He signed other good bills and vetoed some bad ones. This won’t save our state, but it’s nice any way. The asset-forfeiture win was big, though, and reminded me of another unlikely victory from 2011.
In California, the worst abuses of eminent domain came at the hands of the state’s redevelopment agencies, which operated like Soviet bureaucracies that micromanaged development within targeted project areas. In the Kelo decision in 2005, the U.S. Supreme Court ruled that cities were allowed to use eminent domain — not just for genuinely public purposes such as roads and prisons, but for anything that provided a public benefit (to help big-box stores that brought in sales-tax revenues.)
After that kick in the gut, those of us who had been involved in the anti-redevelopment movement felt as if our plane had crashed (to continue belaboring the Flight 93 analogy). But the justices, despite their wrongheadedness, encouraged states to enact reforms. Most did, although California’s flaccid version was pushed by some of eminent domain’s biggest supporters. It seemed hopeless, but then the state became embroiled in a fiscal crisis.
Gov. Brown was desperately looking for revenue. And his advisers were aware of the fiscal arguments made by some of redevelopment’s opponents, including then-Republican Assemblyman Chris Norby, a libertarian whose views rarely aligned with those of the Democratic governor. The governor proposed eliminating these agencies — a policy that survived staunch opposition and court challenges. So California never really curbed eminent domain, but it shut down the agencies most accustomed to abusing it. It was a stunning political victory for unlikely and bizarre reasons.
Had Norby and his dogged band of activists not been plowing the ground for many years, I doubt it ever would have come to pass. That’s a long story to make a short point: The nation isn’t doomed or saved based on any one election, even the election of a president. We surely can’t predict the conditions that will cause a reform to take hold. By all means, rush the cockpit and vote for whatever candidate you choose — but all is never lost, even in “hopeless” California.
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