More on the “Waning Anti-Kelo Backlash”:

Steven Anderson of the Institute for Justice and the Castle Coalition also cautions against prematurely tolling the bells for the Anti-Kelo backlash in the states. He, like Tim Sandefur, remains optimistic that the states will come through with strong reforms that address the issue.

Steven writes:

There’s little doubt that government’s ability to dole out favors through eminent domain creates the classic rent-seeking problem, but to say the legislative response to the Kelo decision is running out of steam is a bit premature. The fact that eminent domain remains a topic of debate both on these pages and in legislatures around the country after almost six months is just one indicator of the issue’s importance — and the activity behind it. And that’s not the only reason for optimism.

As Tim Sandefur suggested, yesterday the Pennsylvania Senate unanimously passed comprehensive and historic reforms of its eminent domain laws (though it did carve out exceptions for Philadelphia and Pittsburgh). Legislators in more than 30 other states and even more local governments are also preparing reform bills for the legislative sessions that begin early next year. It’s important to note that there are very few full-time legislatures; reform cannot occur when they’re not in session. In addition to changes by the legislature, there are movements by citizens in several states for ballot initiatives to restrict eminent domain to its more historic bounds.

Sure, the Alabama and Texas laws Tim writes about could have been better if they also tackled blight condemnations, but they are certainly good first steps. That these bills passed despite intense pressure from the well-funded beneficiaries of eminent domain abuse is surely a good sign for future efforts — at least as much as it’s a call for proponents of eminent domain reform to work as hard as possible to make good reform a reality. While Ohio’s moratorium puts the issue off, Delaware essentially did nothing and California whiffed, many battlegrounds remain.

Eminent domain reform won’t happen overnight. There are powerful groups interested in protecting their territory. But it is happening and any attempt to characterize the fight as over disserves not only the issue, but also those home and small business owners around the country actually working toward a constructive solution. This is a long-term effort and many positive results are on the way.

Certainly I hope that Steven is right that strong responses to Kelo will be possible. Moreover, as I just suggested, it may be that such reforms may be more plausible in states where citizens can propose a referendum on the issue (such as in California), as citizens in those states may have greater ability to circumvent the natural agenda control power of politicians. (Note, I am not saying referenda are always good, just that they may be more effective where policians have conflicts of interest and agenda control). It will be interesting to see how public opinion plays out against public choice theory in the coming months as states continue to address this issue.

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