Some state political candidates see opportunity in the U.S. Supreme Court ruling that said a Connecticut city could condemn people’s homes to make way for a privately owned hotel and offices.
Asa Hutchinson is leading the opportunist sweepstakes. He has denounced the ruling as an affront to the sanctity of private property rights. Attorney General Mike Beebe, Hutchinson’s likely Democratic opponent if Asa! wins the GOP nomination for governor, has been more circumspect. He said the Arkansas Constitution adequately protects private property. If property must be condemned for a public use, proper compensation must be paid. Beebe is tap-dancing, as we’ll explain. But if Hutchinson responds too strongly, he creates a different sort of political problem.
By Constitution and statute, Arkansas has given broad redevelopment authority to local governments. The statute explicitly allows condemnation of private property. It also explicitly allows condemnations of private property to make way for other private uses, in the name of job creation. This is the notorious Tax Increment Finance (TIF) law. (It is fatally flawed, in my view, by its diversion of school tax money to wealthy developers, not by its condemnation provision.)
Hutchinson can’t say he opposes the TIF law, not without angering the Republican developers who hope to capitalize on taxpayer handouts in boomtowns like Rogers and Jonesboro. Instead, he says the law needs fine-tuning. At a speech before a conservative law society last week, he was quoted in the Democrat-Gazette as saying he’s for TIF districts so long as they are used for blighted property and don’t take away people’s homes for malls. Small problems: 1) The law does NOT require that property be blighted to be condemned, and 2) malls are leading the pack of TIF projects.
As when he carefully answered school consolidation questions before the rural school lobby, Beebe won’t play the demagogue’s game on property rights. He notes that there’s no meaningful distinction between taking a private property for another private use and taking it for a public use that aids a private project. There isn’t a TIF project in the state where the public infrastructure to be financed — freeway exits in North Little Rock and Rogers, flood control in Jonesboro — isn’t intended primarily to aid private projects, from sporting good stores to movie theaters to malls. None has required private condemnations yet. But if this law isn’t invalidated on another ground (its unconstitutional theft of school tax money to subsidize developers), condemnations will be inevitable.
Hutchinson is no dummy. He’s trying to walk a tightrope. He tells the rabid property rights crowd he’s with them. But he won’t say the TIF law as written must go. It has too many powerful supporters. Instead, he says we need some bipartisan legislative study. (Preferably completed after the election, we’d guess.)
This idea for study might enjoy some bipartisan support. Rep. Dustin McDaniel, a Democratic candidate for attorney general, wrote the 2005 TIF law. He darn sure doesn’t want to admit his baby already needs fixing. Nor do the backers want to admit it either. Besides, they desperately want to preserve the law’s broad power. What if, as Beebe noted, a reluctant land owner stood in the way of a giant auto plant with thousands of jobs? Wouldn’t condemnation be in the public interest?
Does the issue have traction with voters? If so, can it be exploited without hypocrisy or alienating wealthy backers? Will a third way, such as the one Beebe is responsibly attempting, be safe politically? We’ll let you know next November.