Monday, March 14, 2016

The Make or Break Moment for Kasich . . . So Let’s Talk Property!

March 15 is the make or break day for the Kasich campaign. And by “make or break,” I mean this is the day that determines whether Kasich gets to sit at the grown ups table at a contested GOP convention or whether he is stuck at the kiddie table. Yes, the media is talking about Kasich and the Pennsylvania ballot, but c’mon. The Steel State hasn’t voted for a Republican POTUS since 1988 in the general election. Sure it has 71 GOP delegates to give away, but the vote isn’t until April 26. If someone doesn’t have the Republican nomination sewn up by late April, a contested convention is all but a certainty and then what does it matter whether Kasich’s name was on the ballot?

So let’s talk about something that does matter: eminent domain!

As Governor of Ohio, Kasich is familiar with the potential power of eminent domain. The subject has come up in at least one area of Ohio politics: colleges and universities. Early in Kasich’s first term as governor, he proposed the notion of charter universities. Think charter schools at the graduate level. The theory was to give universities more flexibility and exchange public-sector money for private-sector money because public funding was drying up. It was 2011 after all and money was drying up everywhere.

The President of the University of Cincinnati was, at first, excited about the charter idea. So excited he decided to write to Governor Kasich about all of the reforms the Governor could make to the university system by creating charter universities, including giving universities the power to directly acquire land through eminent domain.

I have been to the University of Cincinnati’s campus many times. My brother is a graduate of UC’s College Conservatory of Music (CCM) so I have spent many a weekend flying in an out of the Cincinnati airport and attending the exceptional CCM productions. Go Bearcats, I say. But, as you might guess, not everyone in the state of Ohio thought that handing over eminent domain power to the university system was a good idea. As best as my research shows, it’s not that UC (or other university systems in Ohio) were being greatly harmed by not having the authority to exercise eminent domain power by themselves; the only issue was the university systems had to go through a public agency to acquire property via eminent domain. Ohio Rev. Code sec. 163.01 et seq. has established at least since 2007 that uses of land for public institutions of higher education, as well as for private institutions of higher education, are presumed to be “public uses,” and thus allowed under state eminent domain law. The only real issue is that an “agency” has to do the taking of the property and it doesn’t appear that universities are agencies under the statutory definition. In other words, the universities saw the charter university movement as an opportunity to cut out the government agency middleman when using eminent domain.

At least at first that is how folks perceived the charter university initiative. Over time, universities saw the writing on the wall: the charter university plan meant less state government oversight but also ultimately less money as private money was not likely to match public money. In due course, the charter university proposal was dropped.

Kasich never himself said he wanted to give the universities eminent domain power, but it was well published that at least the President of the UC system was asking for it and there was no record of Kasich saying he was against the idea. Who knows. Maybe if Kasich’s charter university plan had actually come to fruition he would have had to take a hard stance on the topic, but at a minimum he did not reject the notion outright.

And that seems to be a pretty fair analysis of Kasich’s position on eminent domain—unlike Rubio and Cruz, he’s not rejecting the use of eminent domain outright, but he’s not giving it a big bear hug like Trump. Kasich hasn’t said tons about eminent domain on the campaign trail, but he’s made a few comments, including:

It’s a local issue, but the issue of eminent domain is always a serious one. It’s a tough one you have to deal with. I usually come down more on the side of the people who own the property.

Kasich took a similar position when questioned about using eminent domain to build a pipeline in New Hampshire. According to a local newspaper,

Kasich criticized eminent domain, saying it should be a local control issue. The federal government has the power to take property by eminent domain under the Natural Gas Act. Kasich said he is not here to settle the pipeline debate, but said that eminent domain should be a last resort, not a first resort.

Based on his comments while on the campaign trail, Kasich seems to be generally against using eminent domain powers (though not ruling it out). As Governor, he didn’t rule out allowing universities to use eminent domain power, though he never endorsed the idea either. As with most issues, Kasich’s stance on eminent domain appears to be someone between Trump and Rubio/Cruz, with a lean towards the Rubio/Cruz end of the spectrum.

And there you have it—the GOPers (at least those who are still in the race) and their stance on eminent domain. Next up, we turn to the Dems to see how different (or similar) they are to their conservative counterparts.

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