Matt Rinaldi, James Madison, and the issue of liberty vs. local control

In “Liberty trumps local control” Representative Matt Rinaldi (from Irving) argues for limits on local control. The article is part of the Texas Tribune‘s “TribTalk” series that lets readers hear ideas directly from their sources. This is a great series because it brings readers directly into important debates. I appreciate Rinaldi taking the time to thoughtfully spell out the case for his bill (HB 1939) that would prohibit cities from banning plastic bags. He raises important issues and draws on important sources. However, I have to point out some reservations with his argument.

James MadisonRep. Rinaldi’s argument is relatively straight-forward: freedom is more important than local control. Rinaldi’s acknowledges that Republicans generally argue that decisions should be made as close to home as possible. However, he cites Madison in Federalist #10 to back his claim that local government pose bigger risk of creating laws that infringe on individual rights. Madison’s argument, sometimes labeled “Madisonian enlargement,” is that the way of containing the “violence of faction.” Madison argues that we cannot eliminate the sources of faction, but we can create a political system that controls the power of factions and prevents them from becoming the kind of overbearing majority that threatens the rights of a minority.

For Madison, smallness of a community contains within it the seeds of an oppressive majority:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.

Thirteen statesMadisonian enlargement is the idea that a larger society is more diverse and the factions more dispersed. According to Madison, if you expand the geographic scope of government “you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” The size and diversity of a representative democracy actually helps control special interests.

It seems fair to me to point out that Madison is using Federalist #10 to point out that the advantages he described as “enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it.” The fact that Madison is making a case for federal power does not automatically mean that Rinaldi’s application of the argument to states over local governments is inappropriate. It does suggest that the argument is complicated.

Rep. Rinaldi is offering up a kind of Goldilocks argument about the roles of states. The states are neither too hot nor too cold–they’re just right. The national government is just too darn big. The local constituency is just too darn small. In this regard, Rinaldi seems to be a part of a tradition in American politics of officials thinking that the best place to entrust power is where they are sitting. Jefferson had his doubts about the federal government and the presidency until he moved into the White House.

There are a couple of problems with Rep. Rinaldi’s argument. First, he just might be putting this faith in the wrong level of government. While Madison was concerned about the impact of “factions” on localized government, he would likely find little confidence in a legislature currently feasting on food and beverage provided by lobbyists. In fact, it would be hard to find anywhere the mischief of faction is more enthusiastically practiced professionally than around the Texas legislature in session. A state the size of Texas might dilute the mischief of some factions. At the same time, the role of professional lobbying focuses the role of special interests in a way that produces its own problems. Also, it’s not clear to me that Madison would necessarily be concerned about a community the size of Austin (population about 885,000). One of the reasons why Madison addressed the issue of the size of the nation is that some people at the time doubted that a country the size of the proposed United States (population about 3 million) could be governed.

Ban the bag logoSecond, Rinaldi is right to worry about the protection of constitutional rights. However, his argument implies that the state legislature is the best remedy to the violation of such rights. The article itself mentions several court cases where the judicial branch stepped in to protect constitutional rights. The courts seem more than willing to engage on these issues.

Finally, I have doubt about putting Austin’s ban on plastic bags in the same category as state bans on black students enrolling in public schools. Rep. Rinaldi acknowledges this but still tries to claim equal concern because bag bans, red-light cameras, and similar local ordinances “implicate important contractual and private property rights that the state has a duty to protect.” Such bans do relate to contractual and/or property rights. The problem with this argument is that pretty much everything government does at the federal, state, or local level might involve such concerns. So, the argument the local governments should only be able to act independently of the state when it does not involve businesses or private property would leave no authority at the local level.

Ultimately, it seems that liberals and conservatives agree that local governments should be empowered to make decisions–unless they make decisions that they disagree with. They may not cite the same issues, but they each see some exceptions to the case for local control.

Salute to Homeowners Associations

No article to post. Just a great cartoon from Cul de Sac (by the great Richard Thompson) about the rules that homeowner associations create.

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Adventures in homeowners associations

It’s been an interesting week for  homeowners associations (HOA) around Austin. First, KXAN reported that one HOA was cracking down on children’s chalk drawings on sidewalks (“Chalk drawing draws citation from HOA“). Families were warned that if they didn’t remove those drawings they could be fined and have a lien placed on their home. Today KXAN reported that a local HOA used satellite images to catch a local veteran with a  metal shed in his backyard (“HOA used satellites to spot violations“). Apparently, the HOA was attempting to protect the beauty of the neighborhood from a shed that could only be seen by using Google Earth.

People may do not understand how many of their rights they sign away  when they join some HOAs. People must either not read those HOA agreements or assume that the HOA would not waste their time enforcing some of these petty little rules.

It’s little wonder that Americans are willing to surrender a little of their privacy in that name of national security. After all, they are signing away some of privacy to protect their neighborhood from backyard sheds and children drawing on the sidewalks.

Homeowners Associations

We’ve complained about homeowners associations as the new form of local government in Texas. We might as well laugh a little about it.

Frank & Ernest Comic Strip, September 30, 2012 on GoComics.com.

Homeowners associations without those pesky homeowners

A story in the Forth Worth Star Telegram (“Keller homeowners say they’ve been shut out of association despite new state law“) is reporting how area homeowners associations have effectively barred residents from board meetings. That is, homeowners associations in Texas don’t have to associate with homeowners.

How can this happen in an era in which the Texas legislature claims to be committed to individual property rights? According to the story, several lawmakers were surprised to see this happen under the law. I understand that there will be oversights in the legislative process. However, you can’t help but notice that these oversights almost always benefit special interests with lobbyists.

This appears to be a good example of the kind of influence that organized interests in Texas enjoy. An issue pops up that angers millions of Texans (for a little background, check out a previous blog entry on what homeowners associations have been up to). The legislatures spring into action and addresses the issue. However, somewhere in the process a well-funded interest group gets their lobbyist to make a couple of little changes that protect their clients.

This how special interests win in the legislative process. They pay much closer attention to the details than the rest of us.

Legislators have either played a shell game with voters or are ignorant of the consequences of those little changes in wording that they let slip into the law. Whatever the case, legislators did not get the job done.

If the legislature insists on perpetuating this kind of arrangement they should change the legal term for associations whose boards are controlled by developers to “Corporate Kingdoms.” This would make clear that homeowners they are actually signing away some of their rights to self-government. The state places signs that tell us where our speed on the highway is limited. The least they could do is put up warnings for citizens entering areas where their rights are limited.

Who pays taxes in Fort Worth

The Fort Worth Star Telegram has a story (“Helicopter maker seeks $13.5 million tax break“) about the city’s plan to abate 80 percent of the real property and business personal property for Bell Helicopter taxes for 20 years.

Basically, the city is putting up the equivalent of about 6% of the $235 million to Bell will spend to consolidate its facilities in the area. The argument is that this will help create jobs. Of course, this really means that it will keep those jobs from going some place else.

On one hand, this sounds good. Bringing job to a city always sounds like a good idea.

The dilemma behind selective tax breaks is that giving one company a tax break shifts the tax burden to someone else. Bell saving $13.5 million does not diminish the city’s need for revenue and other property owners will pay higher taxes to cover Bell’s share. According to another story, In-N-Out Burger (from California) got its own tax break. That would mean that Whataburger (a Texas institution) is paying higher taxes so that the city can bring in competition.

Companies play cities off each other. They threaten to leave unless they get a what they want. It’s not the healthiest relationship but a lot of cities play the game.

These are good examples of “tax expenditures,”  subsidies that the government gives via a tax break. It is different from simply lowering taxes in that only a particular company or type of company gets the break. It is not spending in a traditional sense. However, failing to recognize the costs of these tax breaks is misleading. Their impact on the budget is the same as giving a company money.

Both parties use these. One common example is the tax deduction many homeowners get on the interest paid on their home mortgage. That is one way the federal government encourages home ownership through tax  policies. It does not show up on the budget a spending. However, it lowers federal revenue over $100 billion a year.

Needless to say, tax expenditures are a part of the federal, state, and local budgets you should not ignore.

Homeowners Associations as governments

clash between a military family and a homeowners association (HOA) has made me realize that we need to include HOAs in our local government chapter.Anti HOA cartoon

The family fell $977.55 behind on their dues to the Heritage Lakes Homeowners’ Association in Frisco, Texas.  The HOA sent multiple letters to the home. Captain Michael Clauer was deployed in Iraq and his wife was depressed over her husband’s deployment and didn’t open the mail. The HOA initiated foreclosure proceedings and the family’s $300,000 home was sold at auction for $3,201 and then re-sold for $135,000. By the time he returned from deployment, Clauer and his family were facing eviction. Fortunately, Captain Clauer was protected by the Servicemembers Civil Relief Act that protects members of the US military who are fighting for their country. Unfortunately, the law had been ignored in this case and it took months to resolve the problem and return the home to Clauer. A gag order requires that neither side talk about the final agreement. Members of the Texas Legislature filed bills to remedy the problem. Not much happened. That’s another story.

Homeowners associations are authorized by state laws in a fashion similar to local governments and function like local governments in that they create rules for citizens. HOAs are voluntary in the sense that you sign an agreement when you purchase a home located in the HOA’s jurisdiction and you have the choice of purchasing a house somewhere else. Of course, that could be said about buying a home in any city or state.

Like other governments, HOAs are organizations designed to facilitate the cooperation of citizens. Texas has many specialized governments including municipal utility districts and mosquito control districts that help Texans do together some things they can not do individually. For example, mosquito control districts are valuable in that one property owner spraying for mosquitos on their property doesn’t do much to stop those pests. As it turns, out mosquitos don’t mind flying across property lines to bite you. So, we create a mechanism for collection action that sprays area wide.

HOAs serve a variety of citizen needs. Some use the dues collected to provide parks, pools, golf courses, and other facilities that are beyond the means of most individual homeowners. Many create design or other standards that help homeowners protect their property values by making sure that everyone does their part to make sure that the neighborhood stay nice and attractive. Of course, deciding what makes a neighborhood attractive or desirable creates disagreements and sometimes these rules get pretty specific. Some HOAs have standards that require homeowners select their exterior paint colors from a limited palette of three or four colors. Some tell you what your mailbox must look like.

One property my wife and I looked at (briefly) came with over 10 pages of rules. I read as far as the rule prohibiting owning a ferret. My concerns went beyond my right to bear ferrets. I have never owned a ferret and probably never will. I realized that anyone setting up a neighborhood willing to worry about my ownership of small mammals would likely have rules that would prove to be of greater consequence.

An example of an HOA rule with a greater consequence (for some Texans) relates to the kind of vehicles you can park in front of your house in the Stonebriar neighborhood in (again) Frisco, Texas. (I love the Frisco Roughriders, but I’m starting to have real doubts about Frisco in general.) As the Dallas Morning News reported, Stonebriar HOA’s rules place strict limits on what kind of vehicles you can park in your driveway. You can not park boats, trailers, golf carts or RVs in driveways. You can park nice cars and luxury trucks, including the Cadillac Escalade, Chevy Avalanche, Honda Ridgeline and Lincoln Mark LT, in your driveway.

Ford F-150 TruckHowever, you can not park most Ford, Dodge or Chevy pickups. Those have to be hidden away in the garage lest your neighbors or visitors be traumatized by seeing them. So, when Jim Greenwood was surprised when he was told that his Ford F-150 pickup needed to be put out-of-sight and not left in the drive. He thought he had a sufficiently nice truck. Not so, said the HOA. But, he claimed, his Ford F-150 was similar to the Lincoln Mark LT. The HOA believed that “Lincoln markets to a different class of people.” Insulting a Texan’s pickup is almost as bad as making fun of his wife or dog. A flurry of news stories followed and many Texans were left to ponder their relationship with their HOA.

The case of the F-150 and Stonebriar’s HOA illustrate a couple of good points.

1) HOAs go to great lengths to create rules that police the community in order to protect property values and we often sacrifice a little of our freedom (or a lot of our little freedoms) for such protections.

The Beverly Hillbilies(2) Sometimes when you move to the right neighborhood to have the right kind of neighbors you learn you’re not exactly the right kind of person. That’s the paradox of seeking to be exclusive. As Groucho Marx said, “I don’t care to belong to a club that accepts people like me as members.” Exclusive rules have to keep somebody out. It could be you. You may feel confident based on the truck commercials you see during the Cowboys game that your F-150 will be the envy of all who behold it, but some neighbors may see you as the Beverly Hillbillies rolling into the neighborhood.

Texans, like everyone else, struggle to strike a balance between enjoying their freedom and protecting themselves. One person I knew told me about how he wanted to live outside city limits so that he could do whatever he wanted with his property. Like many Texans, he relished the freedom that the open spaces of Texas promised. Ironically, he spent a lot of time complaining about his neighbor’s property. They were enjoying their freedom in a messier way than he cared for. He wanted them to have to clean up junk on their property–especially as he prepared to sell his own.

And, do not take “property values” to mean that this is simply a matter of cosmetics and/or status. A home is usually the biggest investment a family makes. If the behavior of neighbors drops your property values by 25% you are facing a substantial loss (about $35,000 on the typical Texas home).

We have met the enemy and he is us.Of course, I feel sympathy for Jim Greenwood, ferret owners, and everyone else who suddenly find themselves on the wrong side of the new Texas caste system. Still, there are lessons in modesty that such cases bring out. To quote Pogo, “We have met the enemy and he is us.”

One of the lessons we tried to highlight in Lone Star Politics is that the idea of private property is something of a legend. If you live within the city limits the use of your property is subject to rules established by city ordinances in general as well as zoning regulations that tell you whether your property can be put to residential, commercial or industrial use. For example, you can not open a business in the middle of a residential area. Cities also have distinction within these broad zoning categories relating to the type of residences (single or multi-family), level of industry (light or heavy), and manner of commercial use.  Additionally, a variety of easements allow phone, electric, cable, or other companies to come onto your property and dig holes, trim trees, and do whatever else it takes to access their wires.

So, your home may be your castle. How you use it is often in the hands of others.