Taking Back Some Control

In Arizona, Senator Jake Flake is proposing a bill that would prevent legislators from passing laws relating to agriculture:

Flake, a Republican, is a cattle rancher in the White Mountain community of Snowflake. His district includes the only industrial pig farm likely to be affected by his proposal.

Flake believes farming and ranching are highly complex activities — so much so that, he says, the industry should essentially be exempted from regulation by the Legislature.

Got that? If lawmakers can't understand the science behind a "complex" industry, they shouldn't be allowed to regulate it. While this might set an interesting precedent for protecting, say, stem-cell research, its dangers outweigh any conceivable benefit.

Constitutional expert Paul Bender, a law professor at Arizona State University, described Flake's bill as "nutty"....[H]e rightly points out that this proposal has broad and dangerous ramifications. As he said in an Associated Press story, "Lots of laws that you and I would not think of as agriculture laws limit and restrict the production of agricultural products." He cited as examples minimum wage laws and some environmental and water-quality regulations.

Flake's aim is to preempt a "Humane Farms Initiative" that's likely to be on the November ballot. That initiative would ban the use of gestation crates, among other gruesome practices. A threat this dire, needless to say, can only be addressed by formally placing factory farms beyond the law's reach.

This sort of anti-democratic, unconstitutional overkill is an increasingly common GOP response to environmental activism. The Utah House recently passed a truly hideous bill that would require nonprofit groups to post a bond before suing entities engaged in environmentally destructive projects:

Sponsoring Rep. Aaron Tilton, R-Springville, said the latest version of his HB100 "allows the state to take back some control" over environmental lawsuits that have stalled projects like the Legacy Highway. He assured fellow lawmakers the measure does not, as critics say, violate the state and federal constitutions. The bill, if enacted, would require nonprofit groups that want the courts to temporarily halt a new project during appeals to post a bond that covers any costs of delay, including wages, taxes and higher construction expenses or lose their state-granted right to do business in Utah.

"No one," said Tilton, "will be barred access to the courts."

No one, that is, who can afford to pay a multimillion-dollar bond that covers "damages suffered in Utah by any person because of the environmental litigation, including: (i) employees' lost wages, salaries, and benefits; (ii) lost net revenue; and (iii) consequential damages, including increased construction costs, because of the litigation."

It would be nice if we could demand a similar sacrifice from lawmakers who back legislation that's intended to harass or disenfranchise citizens. Ideally, each lawmaker who votes for a bill like Flake's or Tilton's would forfeit his or her seat if the bill is later struck down by the courts.

It seems fair to me.