Natural Rights and the New Republicanism by Michael P. Zuckert

Zuckert’s book is nicely dense with information and, given its subject matter, clearly written. I read it because it is listed in the selected bibliography of the Norton Critical Edition of the Selected Writings of John Locke and because I knew it contained a response to the “republican synthesis” as exemplified in The Creation of the American Republic, 1776-1787 by Gordon Wood, The Ideological Origins of the American Revolution by Bernard Bailyn, and The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition by Pocock. 

Pocock’s form of the “republican synthesis” has been summarized by Garrett Ward Sheldon as “a complex and intricate theoretical formulation drawn from the writings of several nonliberal philosophers, including Aristotle, Cicero, Machiavelli, and James Harrington. It constitutes a body of ideas about man’s nature and the just society that moved from Ancient Greece to Rome to Renaissance Italy to eighteenth-century England and finally to America. The primary components of this paradigm are that man’s nature is essentially political, requiring an economically independent citizenry that participates directly in common rule, thereby developing and expressing its unique human nature and maintaining a virtuous republic”.

Although the “republican synthesis” and Lockean liberalism are both supportive of a representative government, there are important differences. The clearest is that the former is a much more communal view of politics, as opposed to Lockean individualism (or Lockean selfishness).  Among academics, which is the better interpretation is one of the biggest controversies about the history of 17th and 18th-century Western political thought.

Zuckert attempts to restore the traditional view that John Locke was the primary influence on English and Americans Whigs by the time of the early 18th century. This is the focus of the book, especially in the prologue, chapter six, and chapter ten. In the process, he writes a book that is an excellent history of political thought in England from the early 17th century to the early 18th century.

Zuckert writes that at the beginning of the 17th century all Englishmen, whether leaning towards the monarchy or the parliament, were Christian Aristotelians. This was a combination of the teachings of Aristotle and St. Thomas Aquinas.  This was followed by a split into a new form of the doctrine of the divine right of Kings, on one hand, and various pro-parliamentary contractarian arguments, the most important of which was what Zuckert calls John Milton’s “Christian contractarianism”.  He finds this to be very distinct from Locke’s contract doctrine.

During the Interregnum and in the early years after the restoration of the monarchy in 1660, natural law philosophers like Nathaniel Culverwell and Richard Cumberland wrote. Natural law is the knowledge of correct behavior which is “endowed by nature, God, or a transcendent source, and which  can be understood universally through human reason". Natural law predates government.  16th-century English writer Richard Hooker also became an authority and Locke often referred to Hooker in support for his assertions. 

But most important, according to Zuckert, was the Dutch political writer Hugo Grotius, also a natural law theorist. (Grotius remains to the day important in theories of international law). Grotius was the dominant influence on Whig thought until the Glorious Revolution of 1688 and beyond, and it was Grotius, not Locke, that was used to justify the Glorious Revolution. Grotius used the sources of natural law in Roman law and Roman Stoicism along with moral teachings of Aristotle to create a new theory of natural law, rejecting the former political thinking that combined the teachings of Aristotle with St. Thomas Aquinas.

By the late 17th century in England, there were three major branches of political thought besides the natural law thought of Grotius. Christian Aristotelianism continued, especially from a continuing interest in Richard Hooker. There was the new philosophy of Thomas Hobbes. There was also the thought of Locke and the German writer Samuel von Pufendorf.

Locke differed from Hobbes in his theory of natural rights.  Natural rights are "those rights that are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable.” Natural rights are derived from what is known of natural law. The terms natural rights and natural law are sometimes used interchangeably.  Zuckert does not do so.

It is controversial where natural rights philosophy originated.  Zuckert  writes: “Some place it as far back as the Roman law or the medieval counciliarists, while others find seventeenth-century sources like the Levellers, Grotius, Hobbes, or Locke to be more likely.”

All rights are for Locke are based on his very broad definition of property. Although both Grotius and Locke were Whigs, Locke’s political writings are a critique of Grotius. Locke dropped all Aristotelianism from his political thought. Also, Grotius’ conception of natural law does not require a divine origin. For him, it is based on a general consensus among humans. Locke’s natural law is known through God. By the mid 18th century, Locke had replaced Grotius as the most prominent influence on Whig thought.

Zuckert’s “new republicanism” as used in the title of his book is a combination of Locke and older Whig thought. This is exemplified by Cato’s Letters, written by John Trenchard and Thomas Gordon between 1720 and 1723. Like Locke, Cato’s Letters were hugely influential in both in England and her American colonies.  Zuckert argues that supporters of the “republican synthesis” wrongly present Trenchard and Gordon as anti-Lockean when the opposite is true. Chapter ten is devoted to this. 

The Declaration of Independence is the American political document that is most clearly Lockean. Government is a human-created system for securing rights. Rights are known through Creator-given rationality and they predate government.  Large-scale implementation of natural rights philosophy was unique to post-revolution America. Zuckert argues against the idea that American political thinking was more than just a continuation of classical thought, as expressed by Pocock, or a continuation of English Whig thought.

Zuckert also argues against the “old” idea that since Locke inspired both the Glorious Revolution of 1668 and the American Revolution, both were understood in the same way. The English Declaration of Rights of 1669 has analogies to the American Declaration of Independence of 1776. Again, however, the American commitment to natural rights was unique.

The difference between the two documents can be seen by examining the five chief doctrines of the Declaration of Independence: “(1) equality; (2) government as artifact; (3) natural rights as the foundation and end of politics; (4) consent; (5) the right of revolution."

On the subject of revolution, Declaration of Independence declares that there is a universal right to “alter or abolish” a government that does not protect “safety and happiness”.  The Declaration of Rights, after listing the ways that King James had allegedly broken English law, concludes that he had abdicated the throne, which is therefore vacant.  This can be interpreted that there is a right of revolution when the government acts “utterly and directly contrary to the known laws and statutes and freedoms of realm." However, Zuckert writes that there is an important difference. The Declaration of Independence relies on the public’s judgment that their natural rights have not been violated, while the Declaration of Rights has the narrower standard that the historical precedent of a particular country has been violated.  Revolution will not happen frequently, Locke writes, but will result when there is “a long train of abuses, prevarications, and artifices, all tending the same way.”

The Declaration of  Independence declares that “all men are created equal”. Although “no great consensus exists on what it means or in what respect equality may be true”,  Zuckert is certain the term equality meant something different for 18th-century Britains. The Declaration of Rights talks of “all the estates of the people of the realm” instead of individuals, and the three estates of commons, clergy, and nobility are themselves unequal. Equality in the  Declaration of Independence means that all human beings were equal in the state of nature before government existed. At that time,  neither nature nor the Creator gave individuals authority over each other. The assumption of the Declaration of Rights was that God or nature intended “the better sort” to rule.

The Declaration of Rights does not suggest that government was designed by human beings. It is silent on the subject. Therefore even Tory and Anglican believers in the divine right to rule could accept it as well as English Whigs. According to Locke, government is constructed by human beings within the limits set by God or nature. 

The Declaration of Independence states that government is formed by the consent of the governed.  There is some question of whether Locke thought of consent as an actual historical event.  20th-century philosopher Bertrand Russell believed that he did think this, and there is evidence for that from Locke’s argument that one consents to economic inequality when one accepts a system of currency.  However, Zuckert describes consent as “a kind of moral account of the origin, or, perhaps better put, a rational reconstruction of the origin” of government.  Whether or not it was a historical event, consent needs to be ongoing.  This is in contrast to some other social contract theorists, who argued that an agreement between governors and the governed is binding on future generations.  The Declaration of Rights stated that some powers of the British government, such as the ability to tax, require the consent of those represented in Parliament. However, according to Zuckert, there is more of an emphasis on individuals as the sole source of political power in the Declaration of Independence. 

The rights in the Declaration of Rights are not natural rights. They are the “ancient rights and liberties” defined in “the known laws and statutes and freedoms of this realm.” No matter how ancient, they are not universal like natural rights. They are restricted to precedents in English law. Unlike natural rights, these rights do not apply equally to all English people.  Some of the rights listed in the Declaration of Rights apply to institutions rather than individuals. In contrast, all rights in the Declaration of Independence are individual rights.  They are also rights of a different kind.  Zuckert explains:  “ the difference is captured most commonsensically perhaps in the distinction between ‘rights’ and ‘what is right’. The American Declaration speaks exclusively of the former, The English Declaration speaks exclusively of the former, the English Declaration speaks at least some of the time of the latter.”

Unlike the Declaration of Independence, there is no suggestion in the Declaration of Rights that government exists for the sake of securing rights and only for that reason. Rights are important, but they do not predate the English government and so they cannot be the reason for the existence of the government.  All rights as described by Locke predate government. Locke uses the language of rights and property almost interchangeably. Property is defined very widely. It includes life and liberty as well as the possession of material things. Property is needed to fulfill the right of self-preservation.

A resolution passed by Parliament regarding King James speaks clearly of a contract between rulers and rules.  King James had broken “the original contract between King and People”, and thus could be replaced.  A theory of social contract is part of the Declaration of Independence, but social contract theories had a long history. 

Although Locke’s “Two Treatises of Government” was intended to “establish the throne of our great restorer, our present King William, to make good his title”, Zuckert argues that Locke’s theory of government has almost nothing in common with the official justification for Glorious Revolution as presented in The Declaration of Rights, but is completely compatible with the Declaration of Independence.

Locke definition of equality is worth quoting at length. People were equal in the state of nature, before government, in the sense that no one had formal authority over another. Natural equality is “that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man."

In many ways, however, individuals are not equal, even in the state of nature. It “cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level: birth may subject some, and alliance or benefits others, to pay an observance to those to whom nature, gratitude or other respects may have made it due.” For me, this paragraph seems to undercut Locke’s idea of independence and equality in the state of nature.  There are relationships (alliances)and people that should be deferred to for a number of reasons.  The verb “subject”  in the above quote suggests a requirement. However, Locke means there was no authority in either a governmental or quasi-governmental sense.

Zuckert writes: “Natural equality and natural liberty are almost identical. Human beings are naturally equal in their original freedom; their natural freedom implies their original equality”.

Locke writes in “Two Treatises” that he intends to distinguish the political power of the magistrate over a subject from four other power relationships, “that of a father over children, a master over his servant, a husband over his wife, and a lord over his slave.” Chapters 4 to 8 of the “Second Treatise” are devoted to how all these relationships can be justly created out of the state of nature. They are thus all treated as human-created relationships and are distinct from one another.

“Man is a political animal” in Aristotle’s famous phrase. In his political theory, there was never a time when human beings lived as individuals in the state of nature. Since this is very different from the basis of Locke’s philosophy, Zuckert uses it to argue against Pocock’s idea that classical ideas dominated the thought of American revolutionaries.

Historically, Aristotle is correct. Human beings never lived as individuals. Human beings were originally organized into hunter-gather bands of about 30 to 50 people. Locke’s state of nature is, therefore, best viewed as a thought experiment about what kind of government individuals with rational and enlightened self-interest would form if they somehow found themselves in an anarchic state of nature. This kind of thought experiment is probably what Locke originally intended.

I agree with Zuckert that Aristotle’s Politics wasn’t very influential on American revolutionary –era thought.  However, something of Aristotle’s idea that government should be a balance between the one, the few, and the many remained. This conception worked well in English thought with the one monarch, the few aristocrats represented in the House of Lords, and the many represented in the House of Commons. In America, there is one elected executive (the President), an elite upper house (the Senate), and a lower house meant to be more closely reflective of the view of the majority (the House of Representatives).  In the early United States, the Senate was a more elite body than it is now. It was consciously viewed as the protector of private property against majority interests. It was also separated from the public by being elected by the state legislatures, rather than by the direct elections we have now. Interestingly (and weirdly), the government of Utah wants to return to this. It passed a resolution calling for a repeal of the direct election of senators.

Even if American revolutionary-era thought can’t be considered neo-classical, there is no question that Americans were highly interested in classical writers.  Donald S. Lutz did a very thorough sampling of American political writing between 1760 and 1805 and ranked the 37 most cited thinkers. Classical writers include Plutarch at #5, Cicero at #11, Livy at #20, Tacitus at #23, and Plato at #25. 

There is also no question that Locke was very important.  In the above rankings, Locke comes in at #3. The Declaration of Independence, written by Thomas Jefferson with some editing by others and adopted by the Second Continental Congress, does sound very Lockean. Thomas Jefferson also recommended Locke’s Two Treaties of Government as essential reading for a college student and others. He wrote that it was “perfect as far as it goes”, meaning,  I think, that it was perfect as theory, but that one also needs to read about practical politics and political history. Thomas Paine, in Common Sense, writes about the origin of government in Lockean terms, although he doesn’t use Locke’s name.  John Adams wrote that he had studied Locke as a youth.

Zuckert cites two studies of colonial libraries in which Locke’s Two Treatises on Government appeared in 38% of libraries, compared with 37% containing Cato’s  “Letters”, 23% containing Sidney’s “Discourses”, 16% containing Molesworth’s Account of Denmark, and 7% containing Hoadley’s book on government.  Zuckert discusses Cato’s  “Letters” thoroughly in chapter 10 but does not discuss Sidney, Molesworth, or Hoadley. The second study has Locke, Cato’s Letters, and Sidney held by colonial libraries in roughly equal percentages.

Zuckert quotes Donald Lutz in support of his argument for Locke’s primary importance in American thought, but as above, Lutz’s citation study puts Locke at #3, very significantly behind Montesquieu at #1 and William Blackstone at #2, and very closely ranked to David Hume. Lutz himself argues against the idea that Locke holds a unique influence in American Revolutionary-era thought. The studies of colonial libraries that Zuckert himself cites suggest that Cato’s Letters and Algernon Sidney were almost as equally owned and read as Locke, and there is a dispute about whether Cato’s letters can be considered Lockean.

I agree with Lutz and others. Locke is still regularly taught as if his Two Treatises are the only philosophic foundation on which the United States government is based, but this is incorrect. The history of political thought is more complicated and needs to be taught that way.

Enabling Acts and Public Lands Legislation in the West (2013)

Enabling Acts are required by Article IV, Section 3, Clause 1 of the Constitution:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Enabling Acts describe the process that people of the U.S. must follow in drafting and adopting a state constitution. The state must then submit its proposed constitution to Congress to accept or reject. When Congress admitted Vermont and Kentucky, it confirmed that new states enter “on an equal footing with the original States in all respects whatever.” Typically, Enabling Acts have included exemptions of federal property from the taxation of states, rules for regulating public lands, and rules of commerce among Native Americans. Although most Enabling Acts have similar language, some contain different restrictions on various states.[1]

Starting in 2012, legislatures in Utah, Arizona, Wyoming, New Mexico, Colorado, Nevada, and Idaho, and Montana have passed, introduced, or explored legislation demanding that the federal government turn over of federal public lands to the states. Almost all of these legislatures use their state’s Enabling Acts in all or in part as part of this legislation.[2]

Proponents of turning over federal lands to the Western states argue that the amount of federal lands in their states cause serious economic problems. Utah is continuously last in the country in per-pupil funding, and proponents say that any money raised from the sale or leasing of public lands returned to the state will be used primarily for education funding. With the large national deficit, there is also concern that cuts in this deficit will exacerbate the problem since a large proportion of state funds come from federal-state transfers. Restrictive travel rules on public lands cut down on economic activities in those areas.

The additional money is expected mostly to come from a very large increase in extractive industries, particularly in the Uintah Basin. This includes conventional energy such as oil and natural gas, as well as unconventional energy such as oil shale and tar sands. The American Land Council states that Utah has trillions of dollars in such resources under public lands, and that failure to develop these results in a loss of billions of dollars of royalties, income taxes, and associated economic activity. Advocates also want mineral lease royalties increased to match rates in the eastern United States.[3]

Utah’s HB148 requires that the federal government turn over to the state of Utah title to about 30 million acres of public lands by the end of 2014. National parks, military installations, American Indian lands, and wilderness areas would be exempt. National monuments within the state would also be exempt, except for the Grand Staircase-Escalante Monument. The bill also establishes a commission to plan for the use of any newly acquired lands and provides for a study on the costs and benefits of states ownership of these lands.[4]

It provides that if the state transfer title to the public lands it receives from the federal government, “the state shall retain 5% of the net proceeds the state receives, and pay 95% of the net proceeds the state receives to the United States”, and that this 5% will be put into the State School Fund.[5] This is a reference to section 9 of Utah’s Enabling Act:

That five per centum of the proceeds of the sales of public lands lying within said State, which shall be sold by the United States subsequent to the admission of said State into the Union, after deducting all the expenses incident to the same, shall be paid to the said State, to be used as a permanent fund, the interest of which only shall be expended for the support of the common schools within said State.[6]

The enabling acts of many other states have similar language, although in some states the 5% of proceeds may be dedicated to different internal improvements than schools.

In October 2012, Rep. Ken Ivory, chief sponsor of Utah’s HB148, spoke with Wyoming’s Joint Minerals, Business, and Economic Development Interim Committee to advocate that that legislature pass similar legislation. Wyoming passed H.B. 0228 -the Transfer of Federal Lands Study—which created a task force to study “possible legal recourses available to compel the federal government to relinquish ownership and management of specified federal lands in Wyoming”. [7] This bill was modeled after Utah’s, but it not likely that any actual legal strategy decided upon will use Wyoming’s Enabling Act as an argument.[8] The Wyoming Legislative Service Office staff attorneys wrote to members of State of Wyoming Legislature Minerals Committee on Utah’s Land Transfer of Public Lands Act (H.B. 148). The memo discusses likely conflicts with the United States Constitution and the Constitution of the State of Wyoming if a bill similar to H.B. 148 were passed by the Wyoming Legislature.[9]

The New Mexico legislature introduced the Transfer of Public Lands Act in 2013, which calls on the federal government to turn over 23 million acres of public lands to the state by the end of 2015, and creates a task force to study how the state would take ownership of these lands. This bill was patterned after Utah’s HB 148, 6, and cites New Mexico’s Enabling Act in the legislation. It has since died in committee. [10]

In early 2013, S.B 13-142 was introduced in the Colorado state legislature, which would have required the federal government to turn over all “agricultural lands” to the state. This would have included 14 million acres of national forests within the state, and likely also Bureau of Management Lands. However, it died in committee. [11] The legislation [12] was based completely on an argument using Colorado’s Enabling Act, including the “equal footing” language. It also cited Section 12 of Colorado’s Enabling Act, which had very similar language to Utah’s H.B. 148. It provides, in part, that:

Five per centum of the proceeds of the sales of agricultural public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the union, after deducting all the expenses incident to the same, shall be paid to the said state for the purpose of making such internal improvements within said state as the legislature thereof may direct.

In January of 2013, Ken Ivory advocated his bill before a joint meeting of Idaho’s House Resources and Conservation Committee and Senate Resources and Environment Committee. That year, the Idaho legislature passed two resolutions on public lands. One called for a study of the issue. The other called for the state to demand the title to federal lands in the state.[13] The latter resolution, H. C. R. 22, also cites its state’s Enabling Act as part of a legal argument for the federal lands transfer.[14]

The Arizona state legislature in 2012 passed SB1332, another bill demanding the federal government turn over lands to the state. [15] This was vetoed by Gov. Janice Brewer, who, in her veto letter, argued that it was unconstitutional under Article IV, Section 3, Clause 2 and Article VI, Clause 2 of U.S. Constitution, as well as not being reconcilable with Nevada’s Enabling Act. She also wrote that the cost of managing the state lands would be too high, that it would create a new state bureaucracy, and that it would create uncertainty for those currently holding leases on public lands.[16]

The Nevada assembly passed public lands legislation that was signed by the governor on June 4, 2013. AB227—“Nevada Land Management Implementation Committee” – creates a task force that will study transfer to public lands in the states. The bill specifically cites the section of Utah’s H. B.148 that created a commission to study public lands policy as a model for their task force. [17]

In 2013, Montana introduced a resolution to create an interim committee to study public lands, with an eye towards taking over management of Bureau of Land Management Lands.[18]

These public lands bills are being backed by the American Legislative Council. The American Legislative Exchange Council, although officially nonpartisan, it is a socially and economically conservative organization that creates model legislation, drafted by lobbyists and member lawmakers, to be passed in state legislatures.

ALEC is registered as a 501(c) (3) tax-exempt public charity. It is primarily financed by more than 200 private-sector members, and had a $7 million dollar budget in 2010. The donors are normally kept secret.

It pays for member legislators to attend annual conferences. These conferences have task forces, headed by one legislator and one private sector member, which create the model legislation. The model legislation is then approved by a governing board made up of legislators. An ALEC publication from 2011 claimed that ALEC lawmakers typically introduce about 1000 bills based on its model legislation each year, 17% of which pass. It also tracks legislation in all fifty states, and sends out e-mails to legislators about which bills it supports or opposes, along with talking points. [19]

Twenty-four current members of the Utah Legislature, all Republicans, are members.[20] Ken Ivory’s H. B. 148 has been adopted by the American Legislative Exchange as model legislation.[21]

As noted above, the Arizona Governor’s Office has stated that a bill similar to Utah’s was likely to be declared unconstitutional, as has Wyoming Legislative Service Office. The Utah Office of Legislative Research and General Counsel appended a “Legislative Review Note” to Utah’s Transfer of Public Lands Act, which also held that the bill is likely to be unconstitutional due to its interpretation of the Property Clause.

Article IV, Section 3, Clause 2 of the U.S. Constitution, known as the “Property Clause”, gives Congress the authority “to dispose of make all needful Rules and Regulations respecting the Territory or other Property belong to the United States; and nothing in this Constitution shall be construed as to Prejudice any Claims of the United States, or of any particular State." Several Supreme Court Decisions support a broad interpretation of the power the United States has over lands. United States v. Gratiot confirmed that the clause refers not only to the selling of lands but also to the retaining or leasing of them. The opinion held that “Congress has the same power over [territory] as over any other property belong to the United states; and this power is vested in Congress without limitation . . .”

In an 1872 court decision in Gibson v. Chouteau, the Supreme Court ruled that:

[W]ith respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property, or any part of it, and to designate the persons to whom the transfer shall be made. No State legislation can interfere with this right or embarrass its exercise; and to prevent the possibility of any attempted interference with it, a provision has been usually inserted in the compacts by which new States have been admitted to the Union, that such interference with the primary disposal of the soil of the United States shall never be made.[22]

More recently, in 1971 Congress passed the Wild Free-Roaming Horses and Burros Act to protect all unbranded and unclaimed horses and burros on land for ecological goals. This land was managed by the Bureau of Land Management. After the passage of the act, The New Mexico government removed and sold 19 burros because of complaints that they were interfering with livestock operations. This was on land leased to ranchers from the federal government. The Bureau of Land Management claimed that the government of New Mexico had gone beyond its jurisdiction in removing the burros.[23]

The resulting Supreme Court decision in Kleppe v New Mexico reaffirmed a broad interpretation of the Property Clause. It rejected a narrow interpretation of the property clause put forth by New Mexico. It held that the property clause allows Congress to determine “needful” rules for public lands, which “necessarily overrides conflicting state laws under the Supremacy Clause”. [24]

In the 1910s, Utah state officials approved construction of a power plant on a federal forest reservation without the consent of the federal government. In the 1917 Supreme Court case Utah Power & Light v. United States, the court ruled against Utah Power & Light, again reaffirming broad authority over federal lands, including Bureau of Management Lands, under the Property Clause.[25]

In Andrus vs. Utah, the Supreme Court held that states and land lessees can have access to mining claims on state school trust lands that surround wilderness study lands, and that regulation to preserve wilderness can continue as long as economic development is not stopped.[26]

Irvine v. Marshall also gave broad authority to the federal government over public lands in the Territories, “to be disposed of to such persons, at such times, and in such modes, and by such titles, as the Government may deem most advantageous to the public fisc, or in other respects most politic.”[27]

In 1976, Congress passed the Federal Land Policy and Management Act, further strengthening federal power under the Property Clause. This act was one of the main causes of the Sagebrush Rebellion of the 1970s, and it declared that its ownership of public lands was permanent under the Property Clause of the U.S. Constitution.

The Wyoming Legislative Service Office also cites Shannon v. United States, United States v. Gardner, and Light v. United States in support of the idea that the federal government has broad authority under the Property Clause.[28]

Supporters of using the Enabling Acts as a legal claim making the following main arguments: (1) That the rules of construction requires the federal government to dispose of public lands, (2) that the language in Enabling that the federal government shall sell public lands allows no discretion on whether or not to do so, (3) that the Enabling Act is a contractual agreement between the states and federal government that has never been fulfilled, (4) that the language “that the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof” in the Enabling Acts is merely quitclaim language, (5) that the Enabling Act must be read expressio unius, and (6) Supreme Court precedents on the Property Clause should be read narrowly, or are just dicta.

Ultimately, however, proponents of using Enabling Acts language as a legal argument must demonstrate that the public lands referred to never belonged to the United States.[29]

Although Section 3 of the Utah Enabling Act “forever disclaims all right and title” to public lands, it concludes, “until the title thereto shall have been extinguished by the United States”. Reading either sentence without considering the others may, therefore, go against the rules of construction.

A contract must be construed as a whole, and the intention of the parties is to be ascertained from the entire instrument. The contract’s meaning must be gathered from the entire context, and not from particular words, phrases, or clauses, or from detached or isolated portions of the contract. All the words in a contract are to be considered in determining its meaning, and the entire contract in all of its parts should be read and treated together. The entire agreement is to be considered to determine the meaning of each part.

Section 3 and Section 9, therefore, constitute a requirement to dispose of the federal lands, particularly since a state would have no motivation to relinquish title to lands if it got no economic benefit from doing so. It would get no percentage of the sales of public lands by the federal government, and lands retained by the federal government could not be taxed.

Section 3 also holds that lands “shall”, rather than “may” be sold. The mandatory language implies that the federal government has no discretion in whether or not to dispose of the public lands after statehood.

States using the Enabling Acts argue that it acts as a mandate on Congress to sell off public lands within the states, and this contract has never been fulfilled.[30]

On the 100th anniversary of the overthrow of Kingdom of Hawaii, the U.S. Congress passed a resolution apologizing for the act. Based on this, Native Hawaiians filed a lawsuit, claiming that the state of Hawaii must reach a political settlement with them regarding lands controlled by the state. In Hawaii v. Office of Hawaiian Affairs (2009) [31] the Supreme Court unanimously ruled that:

The consequences of admission are instantaneous, and it ignores the uniquely sovereign character of a State’s admission to suggest that subsequent events somehow can diminish what has already been bestowed . . . And that proposition applies a fortiori where virtually all of the State’s public lands—not just its submerged ones—are at stake.

This Supreme Court decision is about a land dispute between a group within a state and the state government and not about land disputes between state governments and the federal government. However, proponents of Enabling Act arguments use the decision here to assert that acts of admission into the U.S. cannot retroactively be overturned. Since they believe Enabling Acts originally promised transfers of lands to the states that have never been fulfilled, this legal right still applies.

Proponents of public land transfer to the states also cite language used in the 1845 Supreme Court Decision Pollard v. Hagan in support of their legislation:

Whenever [i.e. once] the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects whatever. . .the United States never held any municipal sovereignty, jurisdiction or right of soil in and for the territory, of which Alabama or any of the new States were formed, except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia Legislatures, and the deeds cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana.

Pollard vs. Hagan is one of the major legal cases dealing with the equal footing doctrine. Under dispute in this case was land underneath the Mobile River in Alabama. The leases of the land had been given conflicting deeds – one from the federal government and one from the state government. The Supreme Court held that the Federal government did not possess sovereignty over this land, which was ceded only temporarily before Alabama became a state, and ceased after it became a state. Although it recognized that Congress could regulate interstate waterways under the Commerce Clause, this did not extend to ownership of the underwater lands. It held that if the United States retained these lands, Alabama would not be on an equal footing with other states.[32]

However, because the dispute was over land underlying the river, Pollard is often viewed narrowly as a limit on federal land ownership of land underlying waterways, and some Supreme Court rulings since have seemed to confirm that view.[33]

In the 1987 Supreme Court case Utah Division of State Lands v. United States, the court ruled that the federal government was to “hold land for the ultimate benefit” of states and that only “exceptional instances” would defeat state’s title to land under navigable water. Again, this has been interpreted as applying only to such water.[34] In 1894, the opinion in Shively v. Bowlby held that all territorial lands were kept “in trust for the several states to be ultimately created out of the territory.” This is cited in support of the idea that public lands are only meant to be controlled temporarily by the federal government. However, this is another case that dealt specifically with navigable waters.

The American Land Council cites language from the Andrus v. Utah opinion that called Enabling Act “solemn compacts” and “bi-lateral agreement” that must be performed “in a timely fashion” that are to be performed "in a timely fashion". Again, this is meant to emphasize the contractual nature of the Enabling Acts, although in this Supreme Court case the lands turned over at statehood for the benefit of education happened without legal controversy.

Although Utah’s Enabling Act holds “that the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof”, and the Enabling Acts of other Western states include very similar language, proponents for transfer of federal land argue that this is only quitclaim language. A quitclaim deed is “an instrument of conveyance of real property that passes any title, claim, or interest that the grantor has in the premises but does not make any representations as to the validity of such title.” The title, therefore, was intended to be temporary. It was meant to create “clean title" that washed away any lingering idea of territorial sovereignty and alleviate fears from potential buyers that there was uncertainty about whether the federal or state government had a superior title. In turn, the State agreed not to interfere with the required disposal. Since the public lands were never disposed of, they are therefore still in an escrow-type holding.

Another common argument made by proponents of this interpretation of the Enabling Acts is that although Utah conceded “right and title” to public lands, further language in the Enabling Act holds that the state conceded right, title, and jurisdiction to Indian lands. An expressio unius argument is therefore made. Since the list of right, title, and jurisdiction is applied to Indian lands, and jurisdiction is not listed for public lands, jurisdiction is not ceded for the public lands.[35]

The Federal Society argues that United States v. Gratiot has been interpreted over-broadly when it comes to its interpretation of the Property Clause. It authorized the leasing of lead mines on public lands in U.S. territories, which could not be overturned by a state upon admission to the union. Gratiot is specific to that case and should not be interpreted as giving precedent in all state – federal disputes over land.

Similarly, Kleppe is a case deciding that state cannot interfere with the management of federal lands that the federal government already owns. It also should be interpreted narrowly, and not interfere with requirements of the federal government to dispose of other lands.

Gibson v. Choutou holds that a state may not interfere with U.S. ownership or with its disposal, “such as by adversely affecting the buyers’ market for government property by creating discriminatory or disadvantaging rules on purchasers of federal government disposed property”. With the Enabling Acts acting as a contractual agreement between the states and the federal government to sell public lands, there would be no interfering with the disposal of lands by the states.[36]

The Equal Footing Doctrine is also used in support of a land transfer, at least as a rhetorical point. The Equal Footing Doctrine was the main legal argument used during the Sagebrush Rebellion of the 1970s, and it failed then as a legal strategy.

The dominant precedent on equal footing came in the case of Stearns v. Minnesota, in which the court ruling that the equal footing doctrine did not guarantee social or economic equality to new states, but was only an assurance of political equality.

Moreover, during the Sagebrush Rebellion of the 1970s, Nevada considered its equal footing arguments so tenuous that it was hesitant to instigate litigation. It hoped instead to mobilize popular sentiment and get legislation passed in the U.S. Congress, where the Constitution gives it broad authority over public lands.

Later, on July 4, 1994, Nye County Commissioner Richard Carver took a bulldozer to a road in Nevada’s Toiyabe National Forest and arrested a Forest Service employee who attempted to stop it. Carver acted on legislation passed during the Sagebrush Rebellion in 1979, which asserted that the “State of Nevada owns all public lands within the borders of the State of Nevada”. The Department of Justice filed suit against the county. The county relied heavily on the Equal Footing Doctrine in its defense. In 1996, the Department of Justice won the case.[37]

Considering the legal precedents discussed in this paper and the near-consensus of government attorneys on the unconstitutionality of legal arguments based on Enabling Acts, it seems unlikely that any legal arguments relying on Enabling Acts will succeed.



[1] The Heritage Guide to the Constitution. “New States Clause”. N.D. Web. 30 August 2013.

[2] Center for American Progress. “State Efforts to ‘Reclaim’ Our Public Lands”. 11 March 2013. Web. 18 August 2013.

[3] American Lands Council. “HB 148 Utah Transfer of Public Lands Act. We Can’t Wait. Talking Points.” N.d. Web. 25 August 2013. Retrieved from http://americanlandscouncil.org/downloads/transfer_of_public_lands.pdf.

[4] Gehrke, Robert. “Herbert Signs Bill Demanding Feds Relinquish Lands in Utah”. The Salt Lake Tribune. 25 Mar 2012.

[5] Utah State Legislature. Transfer of Public Lands Act and Related Study. 2013 General Session. H.B. 148.

[6] Utah State Archives. “Federal Enabling Act.” 16 July 1894. Web. 18 August 2013. Retrieved from http://images.archives.utah.gov/cdm/ref/collection/3212/id/8292.

[7] Wyoming State Legislature. Transfer of Public Lands Act. 2013 First Session. H.B. 292.

[8] Nickerson, Gregory. “Rep. David Miller offers bill to study transfer of federal lands to Wyoming”. WyoFile. 13 February 2013.

[9] Wyoming Legislative Service Office Staff Attorneys. “ Memorandum from Josh Anderson and Matt Obrecht, to Members of State of Wyoming Legislature Minerals Committee, Utah Land Transfer of Public Lands Act, Utah 2012 HB 148”. 9 October 2012.

[10] Kessler, Mori. “New Mexico Legislator Proposes House Bill Modeled after Utah’s Public Lands Transfer Act”. St. George News. 30 January 2013.

[11] Center for American Progress. “State Efforts to ‘Reclaim’ Our Public Lands”. 11 March 2013. Web. 18 August 2013.

[12] Colorado General Assembly. A Bill for an Act Concerning the Requirement That the Federal Government Extinguish Title to All Agricultural Public Lands Transfer Title to the State. 2013 First Regular Session. S.B. 13-142.

[13] Hill, Austin. “Idaho Republicans Take Aim at Federally Controlled Lands.” Idaho Reporter. 13 June 2013.

[14] Idaho State Legislature. A Concurrent Resolution Stating Legislative Findings Demanding That the Federal Government Extinguish Title to Idaho’s Public Lands and Transfer Title to Those Lands to the State of Idaho. 2013 First Regular Session. H.C.R. 22.

[15] Arizona State Legislature. An Act Amending Title 37, Chapter 5, Article 1, Arizona Revised Statutes, By Adding Section 37-9012.01; Relating to Public Lands. 2012 Second Regular Session. S. B. 1332.

[16] Gov. Janice Brewer. “1332 Veto Letter with Bill”. 14 May 2012.

[17] American Legislator. “Nevada Becomes the 5th Western State to Explore the Transfer of Public Lands”. 6 June 2013. Web. 22 August 2013.

[18] Ibid.

[19] McIntire, Mike. “Conservative Nonprofit Acts as a Stealth Business Lobbyist”. The New York Times. 21 April 2012.

[20] SourceWatch. “Utah ALEC Politicians”. 25 June 2013. Web. 20 August 2013. Retrieved from http://www.sourcewatch.org/index.php/Utah_ALEC_Politicians.

[21] American Legislative Exchange Council. “Disposal and Taxation of Public Lands Act.” 15 Jan 2012. Web. 25 August 2013. Retrieved from http://www.alec.org/model-legislation/disposal-and-taxation-of-public-lands-act.

[22] Utah State Legislature. Transfer of Public Lands Act and Related Study. 2013 General Session. H.B. 148.

[23] Driscoll, Spencer. “Utah’s Enabling Act and Congress’s Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement.” Brigham Young University Law Review. (2012): 999-1038.

[24] CaseBriefs. “Kleppe v. New Mexico”. N.d. Web. 23 August 2013. Retrieved from http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-cohen/the-scope-of-national-power/kleppe-v-new-mexico.

[25] Driscoll, Spencer. “Utah’s Enabling Act and Congress’s Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement.” Brigham Young University Law Review. (2012): 999-1038.

[26] Environmental Law Reporter. “Andrus v. Utah". N.d. Web. Retrieved from http://elr.info/litigation/%5Bfield_article_volume-raw%5D/20570/utah-v-andrus.

[27] Kochan, Donald J. “A Legal Overview of Utah’s H.B. 148 — The Transfer of Public Lands Act”. The Federalist Society. Jan 2013.

[28] Wyoming Legislative Service Office Staff Attorneys. “ Memorandum from Josh Anderson and Matt Obrecht, to Members of State of Wyoming Legislature Minerals Committee, Utah Land Transfer of Public Lands Act, Utah 2012 HB 148”. 9 October 2012.

[29] Driscoll, Spencer. “Utah’s Enabling Act and Congress’s Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement.” Brigham Young University Law Review. (2012): 999-1038.

[30] Kochan, Donald J. “A Legal Overview of Utah’s H.B. 148 — The Transfer of Public Lands Act”. The Federalist Society. Jan 2013.

[31] Hawaii v. Office of Hawaiian Affairs. U.S. 556. Supreme Court of the United States. 2009. Justia.com US Supreme Court Center. Web. 22 August 2013.

[32] Kochan, Donald J. “A Legal Overview of Utah’s H.B. 148 — The Transfer of Public Lands Act”. The Federalist Society. Jan 2013.

[33] Driscoll, Spencer. “Utah’s Enabling Act and Congress’s Enclave Clause Authority: Federalism Implications of a Renewed State Sovereignty Movement.” Brigham Young University Law Review. (2012): 999-1038.

[34] Walston, Roderick E. “The Reserved Rights Doctrine: Case Study Involving Black Canyon of the Gunnison National Park”. Journal of Contemporary Water Research and Education 133 (2006): 29.

[35] American Lands Council. “HB 148 Utah Transfer of Public Lands Act. We Can’t Wait . . . Talking Points.” N.d. Web 25 August 2013. Retrieved from http://americanlandscouncil.org/downloads/transfer_of_public_lands.pdf.

[36] Kochan, Donald J. “A Legal Overview of Utah’s H.B. 148 — The Transfer of Public Lands Act”. The Federalist Society. Jan 2013.

[37] Cawley, McGreggor R. Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics. Lawrence, Kansas: University Press of Kansas, 1993.

Political Donations and Their Influence in Utah (2009)

In this essay, I start with an overall view of political contributions in the state of Utah and their effects. I next present case studies of the top four biggest contributors overall for all state races combined in 2008: Reagan Outdoor Advertising, EnergySolutions, I-Works, and 1-800-CONTACTS. In these studies, I attempted to discover these companies' political interests, focusing on legislation in the 2009 session of the Utah State Legislature and whether the donors received what they wanted. I intended these sections to be descriptive, with minimal editorializing on my part. I end with my own thoughts on money in politics.

Utah has one of the nation's most lax campaign finance laws. “State candidates can raise campaign money from anyone, in any amount. They can spend the money in any amount on any legal activity or purchase. The only requirement is disclosure -- they must say where they got donations of more than $50 and list all their expenditures. It's legal for candidates to give campaign money to themselves, with the only requirement that they pay income taxes on the gifts.” Former Rep. Ralph Becker routinely ran bills for years aimed at restricting the personal use of campaign funds, which sometimes failed “without even getting a public hearing” (Davidson and Bernick, 2008, January 22). “Kirk Jowers, director of the University of Utah's Hinckley Institute of Politics, [said] Utah campaign laws tend to discourage lawmakers from seeking donations from regular citizens because easy, big special-interest money can supply all they need” (Davidson, 2009, February 9).

A Deseret Morning News analysis of federal and state campaign disclosure data from 2003 to May 2006 found that a relatively small handful of Utahans supplied a “huge” share of the state's political donations:

Patrick Byrne [president and chairman of Overstock.com] by himself managed to supply about $1 of every $20 given by Utah individuals to candidates or political groups . . . The Top 10 political donors gave about 21 cents of every $1 raised from individual Utahans. The Top 100 donors gave about 42 cents of every $1 raised -- meaning those few nearly equaled the total given by all of Utah's other 2.5 million residents combined. That gives those few big donors extra political influence -- which some of them acknowledge. It helps their businesses, promotes their personal agendas or even wins elections for or family - - or greases big political appointments (Davidson and Bernick, 2006, May 22).

Bruce Bastian, the state’s No. 2 donor for this time period, was asked by the Deseret News about the effect of his contributions:

Does giving enhance my influence? Politicians always listen to people from whom they want money. That does not necessarily mean they do whatever that donor asks. That is why I insist on knowing their position on this issue [gay rights] before I give them anything.

John Price, No. 8 on the top individual donor list, giving at least $142,000 between 2003 and 2006, said in a 1996 interview about his donations: "How would you know about me without those donations? You wouldn't. Others may have a lot of knowledge. But if they don't donate, too, no one's going to counsel with them, and no one cares."

Because so few Utahans donate politically, giving instead to churches and charity, Ron Fox, a GOP fund-raiser, said, “It’s tough to raise money in Utah,” so that, for those who do, it doesn’t take much money to gain political access. Utah “is the cheapest giving around,” he went on to say (Davidson and Bernick, 2006, May 22).

Political donations in Utah are extremely centralized, with a few individuals and companies contributing most of the funds:

For every $100 in donations raised by incoming Utah legislators in [2006] $95.70 of it came from special interests or members' own pockets . . . 30 of the 104 legislators who [took office in 2007] raised every cent of their campaign money from special interests or their own pockets . . . 87 of the 104 legislators raised more than 90 percent of their money from special interests during the 2006 election cycle . . . The Top 10 groups provided 17 percent of all money raised. The top 50 provided just under half of all money raised . . . A total of 14 special-interest groups gave to at least half of winning legislators (Davidson and Bernick, 2006, December 3).

This continued in 2007, where “nearly all the incumbents raised most, if not all, of their money from special-interest groups.” Ninety-eight percent of the $848,000 in campaign money donated to legislators during the nonelection 2007 year came from corporations, lobbyists, and political action committees. Two percent came from either the candidates themselves or constituents living within their district boundaries. Special-interest money to campaigns totaled $827,000, or about $8,000 per member on average for the 104 legislators (Bernick and Davidson, 2008, January 8).

According to another Deseret News analysis from 2009, “81 cents of every $1 donated to lawmakers in last year's election came from special interests”, which may underestimate the amount. “Utah does not require individual donors to disclose their employers or occupations, so corporations may encourage workers to donate to friendly candidates” without it becoming public knowledge 21 companies donated to at least a majority of the legislators who ran for election in 2008 (Davidson, 2009, February 9).

Many donors make donations to both parties and even to candidates facing each other in elections, showing no particular partisan loyalty. For example, 66 big donors gave to multiple candidates during the 2007 mayoral campaigns, providing about $1 of every $12. Five donors gave to three candidates each, and others made contributions to four. “Of the more than $109,000 multiple givers donated, Christensen received 36 percent; Becker and Buhler received 22 percent; Wilson, 12 percent; Holbrook, 4 percent; Hughes, 2 percent; and Saxton, 1 percent” (Davidson and Bernick, 2007, June 24).

Most legislative races in Utah are not close at all in financial resources between candidates. An analysis by the Deseret News showed that the average incumbent raised about twice as much as the average challenger in 2008 and had about five times as much money on hand. Only seven races as of September 3rd had roughly equal cash on hand (Bernick and Davidson, 2008, September 3).

Concerns about the effect of money in politics are not limited to contributions. Conflicts of interest, especially for a part-time legislature like Utah has, are common. A Deseret Morning News review of all bills introduced in the 2007 Legislature showed that a “fourth of the session’s legislation came with clear or possible conflicts of interest for their sponsors”, although not all conflicts of interests involve a direct monetary interest for those who have them. “70 of the 104 part-time lawmakers introduced one or more bills that appeared to create a conflict of interest.” Reps. Carl Wimmer, R-Herriman, and Gregg Buxton, R-Roy, had a clear or possible conflict of interest on 100% of the bills they introduced Legislators lawyers cause particular problems for transparency since they may use attorney-client privilege to keep their client list secret: “Twelve of the 29 senators either carry clients themselves or their spouses carry clients. That's 65 percent of the Senate. In the House, 19 of 75 representatives are in professions where they carry or could be carrying clients, or one-fourth of the body (Bernick and Davidson, 2007, May 27).

Reagan Outdoor Advertising was the largest downer overall for all state races combined in 2008. Reagan Outdoor Advertising leases billboard advertising space in about 20 markets in Utah, including Salt Lake City; several markets in Nevada, including Las Vegas; and in Austin, Texas. It also offers creative services to advertisers through an in-house art department.

Reagan Outdoor Advertising has given hundreds of thousands of dollars to Utah politicians over the years (Bernick, 2007, September 21). The extended family of William Reagan and Reagan Outdoor Advertising gave at least $309,000 between 2003 and mid-2006. “Reagan and his wife, Julia, ranked Nos. 11 and 13, respectively, among individual Utah donors” in the same time period (Davidson and Bernick, 2006, May 22). Reagan Outdoor Advertising was the third largest donor to new legislators in 2006, at $63,150. In all races during this election cycle, a typical Republican received $595 from Reagan Outdoor Advertising. A typical Democrat received $583. Reagan Outdoor Advertising gave to 89 of the 104 legislators (Davidson and Bernick, 2006, December 3).

In 2007 Reagan Outdoor Advertising gave $34,500 to 69 of the 104 legislators. (Davidson and Bernick, 2008, January 22). It gave $20,000 to Jon Huntsman in 2008 (Bernick and Davidson, 2008, September 6) and was the largest contributor in all state-wide races the same year, giving $66,788 (Davidson, 2009, January 27). In 2008 it gave to 66 of the 104 legislators (Davidson, 2009, February 9). It gave “nearly $120,000 in campaign contributions this year, according to financial disclosures, mostly in in-kind donations to legislative candidates” (Villasenor, 2009, February 11).

In 2009, Reagan Outdoor Advertising got a package of bills passed that made it “easier to place signs on scenic roads, easier to get money from cities when signs are moved, and easier to erect 65-foot signs in unwilling municipalities.” (Help/hurt at the Capitol, 2009, March 13).

HB 272, Utah Scenic Byway Designation Amendments, sponsored by Rep. Christopher Herrod, R-Provo, permitted Utah roads designated as national scenic byways to be “segmented” for road fronts properties zoned for commercial/industrial use or properties that are unzoned. Byways would be divided between "scenic" and "nonscenic" areas. The measure also changed the way the scenic-byway committee is set up and required legislative approval for new scenic byways. “The new scenic byway committee would be made up of an outdoor-advertising-industry appointee, three local elected officials, a member of the state House of Representatives and a state senator, plus representatives from the Utah Departments of Transportation and the Governor's Office of Economic Development.” This replaced travel and tourism officials on the commission.

This was presented as a way to return property rights to landowners, whose authority was “usurped” by unelected planning commissions. This expansion of property rights primarily affected Reagan Outdoor Advertising, by far the dominant company in Utah in billboards. It, in the nature of business, wanted to expand into more areas (Palmer, 2009, March 5), which would be accomplished by fewer byways being declared scenic. Herrod also suggested that mining was being restricted by scenic highways (Villasenor, 2009, February 11).

Changing the scenic byway committee’s makeup to include several elected officials, as well as an outdoor-adverting-industry appointee, would have benefited Reagan Outdoor Advertising. The outdoor-advertising-industry appointee would have reflected the interests of the largest outdoor advertiser in Utah, meaning Reagan Outdoor Advertising. Also, the company will be able to lobby and contribute to the elected officials on the committee in a way that it could not with appointed officials.

After protests from the public and local officials, Legacy Highway was excluded in a substitute bill from the possibility of having commercial signs. “We are not protected by our own ordinances," said Woods Cross City Manager Gary Uresk. Only state-owned land is protected from billboards under the 2005 Legacy settlement agreement, he added, even though the original compromise was worded to prohibit all billboards. “The billboard lobby got that changed, hence my concern," he said (Villasenor, 2009, February 11).

The substitute bill no longer automatically divided byways into "scenic" and "non-scenic," instead allowing cities and counties to request that segmentation. However, John Holland, representing the committee that oversees Utah's Route 12, a federal scenic byway, said both the original and revised HB272 tilted the appeals process in favor of advertisers: “the legislation states that if an individual 'property' doesn't meet six intrinsic characteristics, it is exempted from the billboard rules. Under the proposed bill, any individual property owner who wants a billboard will just claim that his business deserves its own little segment” (Holland, 2009, February 27).

Controversy continued after HB 272's first substitute. With Legacy Highway protected in the bill, there was still concern about Utah's 25 other scenic routes (Villasenor, 2009, March 5). HB272 was substituted two more times in rapid succession, with the most important difference in the final substitute being described by Christopher Herrod as the replacement of an outdoor advertising industry representative with a representative from the private business sector on the new scenic byway committee (Herrod, personal communication, 2009, March 12). It passed the House 48-20, passed the Senate 17-10, and was signed into law by the Governor.

EnergySolutions was the 2nd largest downer overall for all state races combined in 2008. EnergySolutions has made more than $500,000 in state political contributions since 2006, including contributions to 84 of the 104 sitting members of the Utah State Legislature.

The Utah Republican Party is the leading recipient, receiving $154,520 from the company, followed by the Utah Democratic Party, which has received $44,900. The Democrats' Blue Dog Political Action Committee received $22,000, the Salt Lake County Republican Party received $20,800, and the House Conservative Caucus was given $20,000 by the company. Attorney General Mark Shurtleff is the leading individual beneficiary of EnergySolutions' campaign assistance, receiving $30,000, followed by Sen. John Valentine who garnered $19,950 and former House Speaker Greg Curtis, who was given $10,450 before he lost his election last year. Curtis' political action committee was given another $10,000 (Gehrke, 2009, February 14).

The company employs at least registered 10 lobbyists in the state, including former House speaker H. Craig Moody and former Senate president Miles Ferry, along with their spouses. Ferry's son is House Rules Committee Chairman Ben Ferry and his nephew, David Stewart, is also lobbying for the company (Gehrke, 2009, February 14). “The Ferrys always have a presence at the political fundraisers, plus they are known for their elaborate, exclusive parties with selected legislators and their exotic trips with chosen lawmakers to Taiwan, paid for by that country's government”(Paul Rolly, 2009, March 21). Other lobbyists employed by Energy Solutions include Scott Sabey, who has lobbied for the Utah Bar Association, as well as former GOP state executive director Spencer Stokes and Charles Evans. (Gehrke, 2009, February 14) Since 2006, EnergySolutions spent $1 million on lobbyists (Walsh, 2009, February 25). The company also has its own government-relations staff (Gehrke, 2009, February 14).

EnergySolutions, and its previous incarnation, Envirocare, have been large donors in Utah for many years. Steve Creamer and his employees (since he and other investors bought the company in late 2004) gave $161,000 between the purchase and mid-2006. From 2003 to the time of his company's sale, the former owner of Envirocare, Khosrow Semnani, along with his extended family and employees, gave $140,000 (Davidson and Bernick, 2006, May 22). EnergySolutions gave $17,100 to legislators in the off-election year of 2007 (Davidson and Bernick, 2008, January 22).

EnergySolutions was the 2nd largest contributors overall for all state races combined in 2008 (Davidson, 2009, January 27) and donated to 73 of the 90 legislators facing elections that year (Davidson, 2009, February 9).

The Northwest Interstate Compact on Low-Level Radioactive Waste Management, which regulates nuclear waste flowing into eight states in the region, voted last year to prohibit Energy Solutions from accepting foreign waste (Salt Lake Tribune Editorial, 2009, February 16). On March 10, 2008, the Utah Radiation Control Board issued a letter expressing opposition to the importation of foreign waste and sent it to the chair of the U.S. Nuclear Regulatory Commission. Gov. Jon Huntsman added a cover letter (Nelson, 2009, February 21). EnergySolutions sued the compact, arguing that, as a private entity, it operates outside the compact's authority (Salt Lake Tribune Editorial, 2009, February 16).

By mid-February of 2009, it was leaked that company officials, including CEO Steve Creamer, had been working “quietly” for weeks with legislative leaders on a 50-50 profit-sharing proposal, over ten years or more, on all foreign nuclear waste EnergySolutions would import. This may have meant up to 3 billion dollars for the government of Utah (Gehrke, 2009, February 14) and was a temptation for lawmakers because of Utah's budget problems. ”Only the same low-level waste that EnergySolutions takes from 36 U.S. states would be part of the deal -- not the high-level reactor waste nor the hotter Class B and C waste banned in Utah. And 4.3 acres, or 5 percent of the remaining capacity of the mile-square disposal site in Tooele County, would be used for the foreign waste, the company said” (Fahys and Gehrke, 2009, February 17).

In exchange, EnergySolutions would get help from the Legislature in winning permission to dispose of foreign-generated radioactive waste at the company's Tooele County facility (Gehrke, 2009, February 14). The Utah Legislature could have voted to withdraw from the Northwest Compact on Low-Level Radioactive Waste Management, allowing Energy Solutions to dispose of foreign nuclear waste in Utah, assuming approval from the Nuclear Regulatory Commission. (Salt Lake Tribune Editorial, 2009, February 16). However, there was concern that radioactive waste from Utah businesses and universities is too hot for EnergySolutions goes to a government-owned disposal site in Washington state because of Utah's membership in the Northwest Compact (Fahys and Gehrke, 2009, February 24). Senate Majority Leader Sheldon Killpack originally was going to run the bill, before the “backroom deal fell apart” (Walsh, 2009, February 25).

On February 17th, Gov. Jon Huntsman and Rep. Jim Matheson spoke out against the profit-sharing proposal. Matheson, who has introduced a bill in the U.S. Congress that would ban all importation of foreign nuclear waste, said in a statement that he was “outraged that Utah legislators would even consider allowing our state to become the universal dumping ground for the world's nuclear garbage.” After meeting with state legislators leaders the same day, Gov. Huntsman said, "Our position is abundantly clear. Let's just say that the price the state pays for being a dumping ground lasts forever. The recession will not.” While noting that the discussions with EnergySolutions were still the early stages, Senate President Mike Waddoups said the money from Energy Solutions could be helpful for funding education and road projects. House Majority Leader Kevin Garn, R-Layton said: "The state is going to lose the lawsuit, and EnergySolutions is probably going to be able to bring this waste anyway, and, if they do, there's going to be an opportunity for Utah to be a partner” (Fahys and Gehrke, 2009, February 17).

The Salt Lake Tribune reported on February 19th that Gov. Jon Huntsman said he would veto any attempt by the Legislature and EnergySolutions to bring foreign radioactive waste into the state. Senate President Michael Waddoups said Huntsman's veto threat wouldn't keep lawmakers from exploring the idea. Senate Majority Leader Sheldon Killpack, who was in a meeting along with Waddoups when Huntsman threatened the veto, said it was “premature to say no to a bill that hasn't been written yet.” EnergySolutions continued its discussion with Utah legislators.

A company spokeswoman said EnergySolutions “had planned all along to use the revenue from the disposal of the international material to ‘do some good things for the people of Utah,’ like buy computers for schoolchildren, but given the economic crisis, she said it made sense to offer the funds to the Legislature.”

For at least the last two years, Energy Solutions has been running a major public relations campaign. By mid-February 2009, the company had been running TV ads for several weeks, which featured CEO Steve Creamer discussing the company's plan to share the foreign waste proceeds and the fact he was raised in southern Utah (Gehrke, 2009, February 18). Rebecca Walsh of the Salt Lake Tribune critically described one of the commercials: “The soft-focus ads started running a few weeks ago: sepia-toned photos of 1950s St. George, a good 'ol boy from down south ruminating on the radioactive cloud from Nevada, a classic closing line about ‘the place I call home’”. Since 2006, the company spent $700,000 on non-profit organizations. In 2007, the EnergySolutions Foundation spent $80,000 on marketing. It also paid for an opinion poll during February of 2009 (Walsh, 2009, February 25).

On February 24, Utah legislative leaders said they might write a bill that would require EnergySolutions to give the state a share of any foreign-waste revenues the company would receive if it won the lawsuit against the Northwest Interstate Compact on Low-Level Radioactive Waste Management, which was pending at the time. This new bill would have done that without withdrawing from the Compact. The original idea of a 50-50 profit-sharing proposal was dropped. As the Salt Lake Tribune summarized the situation: “Lawmakers found themselves in personal cost-benefit analysis: fight the governor, who promised to veto any foreign waste bill, and public opposition for uncertain revenue".

EnergySolutions said if foreign waste was taken to its Tooele landfill, it still would use “its nonprofit foundation to distribute 50 percent of profits to local charities for cancer research, college students, public schools and reducing air pollution” (Fahys and Gehrke, 2009, February 24).

On February 27th, EnergySolutions scored a partial judicial victory in federal court, with Judge Ted Stewart ruling that its Clive facility “is not now and has never been a regional disposal facility.” The eight-state Northwest Comto federal regulators pact had decederal regulators that the Tooele County site was subject to its restrictions prohibiting foreign waste. EnergySolutions wanted the court to determine if its facility is "regional", and if not, if Congress intended to grant compacts the authority to regulate other facilities. EnergySolutions argued that, as a private business with cross-border commerce rights granted by the U.S. Constitution, the compact violated the rules of interstate commerce because the compact was set up only to regulate “regional" facilities. Lawyers for the compact argued that the Clive facility was regional and therefore under its authority, as was the intent of Congress in the amended 1985 Low-Level Radioactive Waste Policy Act. Stewart said his ruling “will be based on that very narrow question of Congressional intent and would not consider policy implications.” He also asked why EnergySolutions, after accepting the compact's authority for so many years, was suddenly objecting (O'Donoghue, 2009, February 27). A decision is pending as of the time of this writing and is expected to clarify whether EnergySolutions is under the Northwest and Rocky Mountain Compacts.

This narrow ruling may have wider policy implications. A lawyer for the state of Utah said, “Imagine a Utah that cannot shut the gate on foreign radioactive waste, cannot outlaw hotter low-level waste and cannot even revoke the license of a nuclear waste disposal site within its borders.” There are concerns that the ruling will end the whole compact system and allow nuclear waste not just from Italy but from other countries to be stored in Utah (Fahys, 2009, February 26).

The Salt Lake Tribune reported on February 27th that Sen. Sheldon Killpack said there would be no bills involving EnergySolutions in the 2009 legislative session. Plans for the bill withdrawing from Northwest Compact in return for the 50-50-profit split with Energy Solutions, and the idea of taxing foreign nuclear waste profits, were both dropped (Gehrke, 2009, February 27).

Controversy over EnergySolutions continued after the 2009 legislative session. Democrats on the U.S. House Energy and Environment Subcommittee wrote to the U.S. Nuclear Regulatory Commission “to air their concerns and to ask for the federal agency's assessment of what it will mean if, as the company insists, the Northwest Compact lacks control over EnergySolutions”. (Fahys, 2009, March 13).

The U.S. Nuclear Regulatory Commission's voted 3-to-1 on March 18th to classify depleted uranium as Class A low-level waste, causing controversy among some who think it is “hotter” than that. “Anti-nuclear groups have said DU is 40 times more radioactive than typical Class A waste and is four times more hazardous than some types of plutonium. They said it needs to be secure for thousands of years -- far longer than the 100-year hazard limit for Class A waste”. It also made up 1.4 million tons of it potentially eligible to go to EnergySolution's Tooele site (Fahys, 2009, March 18).

I-Works was the 3rd largest downer overall for all state races combined in 2008. I-Works appears on the list of top donors because Utah Attorney General Mark Shurtleff received a $50,000 donation from I-Works, nearly a third of all his donations. I-Works is an Internet firm whose CEO, Jeremy Johnson, donated a house for "The Lost Boys," an outreach program that Shurtleff supports for young men who leave polygamous families (Bernick and Davidson, 2008, May 7). I could find no reports of what specific legislation I-Works or Jeremy Johnson may have had in the 2009 legislature, except for what lobbyist and former House Minority Leader Frank Pignanelli called “1-800-Contacts vs. every other Internet company (reminiscent of the never-ending bank/credit union battles)” (Pignanelli and Webb, 2009, March 15).

1-800-Contacts was the 4th largest downer overall for all state races combined in 2008. 1-800-Contacts gave $72,950 to state politicians and parties in 2008 and donated $28,950 directly to 62 of the 90 members of the current Legislature who stood for election that year. In total political contributions, it gave the eighth amount among corporations in the state (Bernick and Davidson, 2009, March 7).

1-800-Contacts, along with a number of other large businesses, got controversial legislation that it wanted passed by the Utah House in 2009 in a 38 to 36 vote. It was not passed in the Senate.

HB 450 by Rep. Brad Last, R-St. George dealt with what “all agreed was an abuse of trademark rights on the Internet”. T.” bill would have allowed a firm who believes their trademark has been “abused” in Internet advertising to seek an injunction and attorney’s fees in state court. Internet sites and search engines were accused of charging fees and selling ads to competitors. For example, a search for 1-800-Contacts might actually bring up a compcompetitor’se above the 1-800-Contacts site if that competitor also brought a “sponsored link”. The bill would not allow companies sue search engines and Internet sites, but rather firms who ng the “sponsored link” ad (Bernick and Davidson, 2009, March 7). “Trademarks are already protected in federal court, but the Utah bill would set up new standards to give companies an easy way to get a remedy and would set a low bar for obtaining an injunction” (Gehrke, 2009, March 8).

Previously, 1-800-Contacts had sued competitor Drugstore.com Inc. for placing Internet ads that appear when people looked up “1-800 Contacts” in a search engine, but this was a federal court case (Bloomberg News, 2008, February 29). In August 2007, 1-8000 Contacts sued rival Lens.com Inc. in federal court in a similar case (Bloomberg News, 2007, August 20).

However, a number of other firms opposed the bill, causing legislators to say that HB450 was one of the most-lobbied bills that session, with top lobbyists hired on both sides (Bernick and Davidson, 2009, March 7). The Utah Technology Counccomprisede up of hundreds of Utah technology companies, wrote to legislators opposing the bill, arguing that thlegislationll “will severely hamper Internet commerce in Utah” (Gehrke, 2009, March 8).

Previously, in 2007, the state of Utah tried to the l the entire practice of key-wkeyword-triggeredrtising. The measure was approved by Gov. Jon Huntsman and a unanimous vote of the Legislature.

“You put 1-800-Contacts into Google, and you get 47 different contact lens makers,” said Senate Majority Whip Dan Eastman, R-Bountiful. House Majority Leader David Clark, R-Santa Clara, “likened the deed to diverting a shopper who intends to enter a particular department store to buy a dress shirt: ‘You get to the front door and somebody whisks you away to a different store.’”

The Associated Press wrote: “Eastman and Clark said they didn’t come up with the idea but believe in the cause. They said they understood they were doing the bidding of a select group of Utah companies. That group, they said, includes 1-800-Contacts Inc., which has been fighting a losing court battle against pop-up advertiser WhenU.com. They also mentioned Internet retailer Overstock.com” (Associated Press, 2007, April 11).

In 2006, 1-800-Contacts was the 10th largest donor of campaign contributions: $37,450 spread to 60 legislators. By this time, 1-800-Contacts was pushing legislation to help its mail-order business for several years (Davidson and Bernick, 2006, December 3).

Lawmakers have required contact manufacturers to sell specialized lenses to 1-800 Contacts, an example of writing legislation so narrowly that only one company can qualify for a contract, a practice the Salt Lake Tribune’s Rebecca Walsh described as “routine” (Walsh, 2008, December 3).

It is conceded that giving large campaign donations will give you access to those you support. Another question to ask is: “If the donation were not given, would such and such a bill be presented at all?” In the cases that I’ve presented, passed or proposed legislation were not initiated by legislators or public demand. There was no public outcry for additional nuclear waste, more billboards, or better-targeted Internet advertising. Businesses advocated legislation that would benefit their narrow economic interests. Legislators who carried and supported these bills presumably had less crass motivations, but the end result is that those who donate get preferential treatment.

Political contributions also create a systemic problem that goes beyond an individual legislator, lobbyist, or piece of legislation. Arguments about whether votes are bought in a quid pro quo way or whether the “appearance of corruption” is damaging enough to require campaign finance reform do not address this greater and more difficrarem.

It is not common that votes are actually bought. That isn’t necessary. A corporation or special interest group doesn’t need to corrupt anyone. Candidates will always emerge that will honestly be supportive of their interests, and these will get monetary support from these groups. With money flowing towards candidates in this way in every election in America since the founding, there has been built up a whole history and culture of politics that is slanted towards special interests, many of which have no concern for the common good.

Who can compete for office is limited to those who can raise substantial money, so those who cannot gain the support of large donors are barred from any serious run for office. Large donors do not donate to candidates that they know will not support their interests, so candidates who receive their money have given donors some reason to believe they will be supportive of those that fund them. Since the candidate who raises the most money is far more likely to win office, those who are elected have received the most special interest money and are therefore more likely to represent those interests. Politicians who do not reflect the interests of their donors after being elected are in danger of having their funding withdrawn in the next election.

If it is perceived by the public that mass participation in politics is confined merely to choosing between two possible leaders in elections that reflect the interests of competing economic elites, public cynicism about politics will be permanent.




Associated Press. (2007, April 11). Google objecting to Utah ad law, p. B2.

Bob Bernick Jr. (2007, September 21). Huntsman's PAC bag light. Deseret News, p. B1.

Bob Bernick, Jr. and Lee Davidson. (2007, May 27). Legislative conflicts of interest common. Deseret News, A4.

Bob Bernick Jr. and Lee Davidson. (2008, January 8). Legislators report hefty sums in war chests for 2008 races. Deseret News, p. B2.

Bob Bernick Jr. and Lee Davidson. (2008, May 7). $38,400 of Shurtleff's war chest comes from payday lenders.

Bob Bernick Jr., and Lee Davidson. (2008, September 3). Campaign filings show fundraising lopsided in Utah. Deseret News, A1.

Bob Bernick Jr. and Lee Davidson. (2008, September 6). Governor is running on borrowed cash. Deseret News, A1.

Bob Bernick Jr. and Lee Davidson. (2009, March 7). House approves bill on trademark rights. Deseret News, A4.

Bloomberg News. (2007, August 20). American Airlines sues Google. Deseret News, Web.

Bloomberg News. (2008, February 29). 1-800 Contacts sues firm over use of its trademark. Deseret News, p. D14.

Lee Davidson and Bob Bernick Jr. (2006, December 3). Beholden to special interests? Deseret News,p. A1.

Lee Davidson and Bob Bernick Jr. (2006, May 22). Handful give lots of $$. Deseret News, p. A1.

Lee Davidson and Bob Bernick Jr. (2007, June 24). Mayoral donors hedging their bets. Deseret News, p. A1.

Lee Davidson and Bob Bernick Jr. (2008, January 22). Rechanneling gifts: Legislators shift cash donations. Deseret News, p. A1.

Lee Davidson (2009, January 27). State candidates spent $6.25 per voter in '08. Deseret News, B1.

Lee Davidson (2009, February 9). Businesses fund Utah campaigns. Deseret News, A1.

Judy Fahys. (2009, February 26). Utah, EnergySolutions square off in court. The Salt Lake Tribune.

Judy Fahys. (2009, March 13). What if N-waste firm wins its case? The Salt Lake Tribune.

Judy Fahys. (2009, March 18). Ruling clears way for EnergySolutions to store depleted uranium in Utah. The Salt Lake Tribune.

Judy Fahys and Robert Gehrke. (2009, February 17). Matheson, guv blast foreign nuke waste profit-splitting scheme. The Salt Lake Tribune.

Judy Fahys and Robert Gehrke. (2009, February 24). Legislators may shake up foreign-waste profit-sharing deal. The Salt Lake Tribune.

Robert Gehrke. (2009, February 14). EnergySolutions donates to many Utah lawmakers. The Salt Lake Tribune.

Robert Gehrke. (2009, February 18). Huntsman readies veto for proposed foreign-waste deal. The Salt Lake Tribune.

Robert Gehrke. (2009, February 27). Senator: No EnergySolutions bill this session. The Salt Lake Tribune.

Robert Gehrke. (2009, March 8). Utah lawmakers take another stab at regulating Web commerce The Salt Lake Tribune.

Help/hurt at the Capitol. (2009, March 13). Deseret News, A.4.

John Holland. (2009, February 27). House Bill 272: Let's not go down this road. The Salt Lake Tribune.

Steve Nelson. (2009, February 21). Inviting in foreign waste like offering lawn to neighbor's dog. The Salt Lake Tribune.

Amy Joi O'Donoghue. (2009, February 27th). EnergySolutions wins small victory in bid to store Italy's N-waste. Deseret News.

Rebecca Palmer. (2009, March 5). Billboard bill exempts Legacy Highway. Deseret News, Web.

Frank Pignanelli and LaVarr Webb. (2009, March 15). Capitol's now silent, but there were many standouts.

Paul Rolly. (2009, March 21). Rolly: What webs these legislative lobbyists weave. The Salt Lake Tribune.

Salt Lake Tribune Editorial. (2009, February 16). Nuclear intrigue. The Salt Lake Tribune.

Maria Villasenor. (2009, February 11). Could billboards be placed on Legacy? The Salt Lake Tribune.

Maria VillasenThe revised0billsarch 5). Revised bill would keep billboards off Legacy. The Salt Lake Tribune.

Rebecca Walsh. (2008, December 3). Walsh: Execs got a friend in Utah’s Capitol. The Salt Lake Tribune.

Rebecca Walsh. (2009, February 25). Walsh: EnergySolutions 'finally gone too far'. The Salt Lake Tribune.