Nudging Government to Govern

For possibly the first time in its history, this month Scenic America filed a lawsuit of its own rather than just a supportive brief.  Having tried logic, evidence, encouragement and seemingly every other alternative, Scenic America has turned to the courts in an effort to get the Federal Highway Administration (FHWA) to, well, do its job.

The Highway Beautification Act (HBA) was signed into law in late 1965, during my last year of high school and just as the now-classic California Dreamin’ was released by The Mamas & Papas following a freak September snowstorm in eastern Idaho.

However, the HBA wasn’t fully deployed until 1972, as I was graduating from college.  It had been delayed by development of state-by-state agreements such as the one signed that year by North Carolina, where I now live.  By then outdoor billboard and other sign interests had already pushed through amendments that watered the HBA down, overriding the compromise agreements they made when it was created it.

The following year, as I took my first full time job in community-destination marketing to work myself through law school at night, I learned first hand about one of the amendments from Luke Williams, one of the inventors who had built the huge American Sign & Indicator Corporation based in Spokane, Washington.

In the late 1960s, Luke, a lifelong Republican, had persuaded the powerful Democratic Senator from Washington State, Henry M. “Scoop” Jackson, to insert an amendment to the HBA.  It was designed to exempt the ubiquitous, electronic time-temperature signs the company leased from the HBA’s purpose of reducing and restricting sign and billboard clutter and blight along the nation’s roadways.

The amendment carved out an exception along roadways stipulating that “public service information such as time, date, temperature, weather or similar information may be advertised on electronic variable message signs located in commercial and industrial areas.”

By 1978, as I headed to Alaska to head the DMO in Anchorage, the FHWA’s administration of the HBA had become so politicized that the agency formed the National Advisory Committee on Outdoor Advertising and Motorist Information to make an assessment along with recommendations to improve effectiveness.

It was chaired by Thomas W. Bradshaw, Jr. a former mayor of Raleigh, North Carolina.  At the time he was secretary of the North Carolina Department of Transportation during the first terms of Governor Jim Hunt, who would again serve as governor after I arrived in Durham, NC to jump-start a DMO here in 1989.

The Committee included a balance of transportation and planning experts, tourism representatives, billboard representatives, sign manufacturers –including the senior vice president under Williams at American Sign - environmental experts, garden clubs, local officials and academicians including University of George economist Dr. Charles Floyd, now a friend of mine and retired in North Carolina.

Over several years the Committee met and conducted a wide range of public hearings.  It also broke into sub-committees to evaluate a wide range of aspects before making a final report in 1981 to the head of the FHWA, almost exactly 16 years after the HBA was first enacted.

One interesting aspect of the report is that it attempts to benchmark the improvements generated by the HBA as of 1980 including a 71% improvement in aesthetic quality by removing 542,115 signs from roadsides - including 103,000 large, unsightly billboards -  and a 33% reduction in standard-size billboards while preventing another 200,000.

In 1965 when the HBA was enacted, there had been an average of one billboard every third of a mile along primary highways throughout the nation. By 1978 when much of the act had been gutted by the allies of billboard companies, the sign blight along roadsides had been reduced to a little more than one per mile.

But the improvements were not even. The General Accounting Office reported prior to the Committee’s deliberations that residents of many areas could detect little or no improvement in their states.

What they couldn’t thwart by diluting the HBA with subsequent amendments, the billboarders effectively thwarted by starving it of funding for implementation as well as by bullying agencies, bringing the FHWA to estimate in the 1981 report that it would take another 154 years to remove non-conforming signs, a clock that today has probably reached several hundred years.

In its 1981 report the Committee laments the loopholes in the law as well as poor enforcement of the HBA.  It notes in one resolution that staff and funding for the FHWA’s Junkyard and Outdoor Advertising Branch had been slashed to skeleton only a few months into the then-notoriously anti-regulation Reagan administration.

Today, ironically, many thoughtful Republicans including former elected officials believe that the reason so many members of that political party are rabidly anti-regulation is not because they are inherently heavy-handed and excessive.

Instead, they believe regulations only got that way as lawmakers responded to the general and enduring failure by the executive branch at every level of government to execute them in the first place, setting off cycles of over-tightening and more and more complexity.

At the heart of even the watered-down HBA are three relatively straight-forward restrictions that even today, nearly 50 years after its passage, both federal and state agencies are failing to properly execute.

The law stipulates that:

1) Roadside billboards are permitted only in commercial/industrial zones but using tactics some experts call “legalized corruption,” billoarders have persuaded lawmakers in many areas to establish what was already castigated in the 1981 Committee report as “phoney zoning,” and still clearly evident today in North Carolina.

2) The act stipulated that billboards existing before 1965 could continue if they met state and local customs prior to passage of the HBA. However, billboarders have successfully pressed agencies to permit thousands of new billboards after that date. Failure to enforce this aspect is the basis of the suit now filed in U.S. District Court.

3) It also stipulates that billboards must be regulated as to lighting, size and distance. This included the prohibition of digital billboards for anything other than time and temperature or public service.  The Scenic America lawsuit asserts that the lighting provision is obviously not being enforced.

However, in late 2007, just as the “Great Recession” hit during the final months of the Bush Administration, the Federal Highway Administration, without rationale or discussion, inexplicably reversed its position on digital billboards and issued a memorandum declaring that digital billboards were not intermittent.

Failing in the years since with expert testimony to persuade the FHA that digital billboards are by their very definition, intermittent lighting, and frustrated at years of non-enforcement of the Highway Beautification Act, Scenic America has turned to the courts to force the government to govern.

Scenic America, in the suit filed on its behalf by the Georgetown University Law Center’s Institute for Public Representation, is asking the courts to require the federal agency to resume active enforcement of the provisions and intent of the 1965 Highway Beautification Act, including the original intent of intermittent.

Not so coincidentally, the origins of Scenic America date back the 1980s and a response in part to the findings of Bradshaw’s 1981 Committee Report to the FHWA.

The Committee, lamenting that amendments pushed through Congress in 1978 were interfering with local community control of roadsides as well as lax state enforcement, encouraged in one of its motions the creation of state and local advisory committees across the nation to advise and assist administrators in implementation of the HBA.

However, foretelling that the FHWA would probably continue to be grid-locked or politicized into inaction, the Committee noted that it had been divided into two opposing camps and because its motions had narrowly passed, minority reports were included in the report.

Frustrated at continued FHWA inaction, within months of the Committee’s report, a nationwide coalition formed what would be renamed Scenic America later in that decade, along with affiliates in each state and in many communities, one of which I have been involved in resurrecting for North Carolina.

The objective of these scenic entities are to safeguard the scenic qualities and character of America’s roadways, countryside and communities and foster citizen engagement in scenic conservation.  It isn’t being anti-billboard but anti-blight and pro-scenic character.

Polls continue to overwhelmingly favor beautification of roadsides.  And voter sentiment runs strongly against the blight created by billboards and any tree-cutting to make them visible.

Yet this sentiment has continued to be thwarted both in legislative bodies and in agencies by powerful billboard interests, even as consumer and business use of billboards had dramatically shrunk to less than .20%.

Economists call the tactics used by billboard companies “rent-seeking,” including campaign contributions and heavy-handed lobbying.  Think of it as renting economic value by influencing government decisions rather than creating economic value.

Other experts refer to these actions as a form of “legalized corruption.”  According to free-market advocates, entities and allies so engaged are not pro-market but seek instead to tilt the playing field to their benefit, but never to level it. Lawmakers and agencies are pawns, voters the victims.

Hopefully Scenic America will prevail in the courts and government will begin to govern by finally and fully enforcing the Highway Beautification Act.

Legalized Corruption

In the late 1970s, about the time I headed to Alaska where roadside billboards are banned in the state constitution, the State of South Dakota tried to billboard the entire state by strip zoning as commercial every inch of their Interstate highways and primary roadways.

Fortunately, back then, businesses that sought fortune by influencing government decisions for private gain (aka rent-seeking) had not yet stripped the backbone out of federal, state and local government agencies to the degree they have today.

In 1966, after having achieved generous concessions that led to the compromise that forged the national Highway Beautification Act, billboard companies and their lobbyists immediately set out at the state and local levels to circumvent the very compromise to which they had agreed.

South Dakota obliged but it ran into Dick Moeller, then a newly-appointed Chief for the Junkyard and Outdoor Advertising Branch of the Federal Highway Administration in Washington D.C.

The Beautification Act banned new billboards nationwide except for areas zoned industrial or commercial.  This was meant to protect the scenic character as well as the environment along roadways in all areas that were not already desecrated.  The act also created the much less obtrusive, but far more effective, logo sign programs for businesses located near highway exits.

While formation of the Beautification act began in 1964 when President Lyndon Johnson challenged US Secretary of Commerce and former North Carolina Governor Luther Hodges to do something to clean up the roadsides and formation of a Task Force and the 1965 White House Conference on Natural Beauty, in the end it was all but gutted by allies of the outdoor billboard industry.

FHWA determined South Dakota’s move wasn’t bona fide under the law and assessed the state a 10% penalty to be withheld from highway funds distributed to states by the federal government.  Pushing and shoving by powerful interests as well as campaign donations had little effect and as a result more enlightened interests were able to prevail in South Dakota.

Oh, how things have changed!  Weaseling favorable treatment from government has now permeated legislative bodies, commissions and even administrators at every level.

Even those officials who might vociferously object to such a characterization are betrayed by how enthusiastically they embrace requests from special interests vs. how slowly they are to respond to popular will or to stand firm when attempts are made to circumvent or hollow out laws and ordinances.

That may not be their intent, but it has been documented in research by Vanderbilt professor Dr. Larry Bartels showing that officials are 50% more likely to react to affluent constituents in the top third of income distribution compared to those in the middle and not at all to the poor.  It is no wonder that they are perceived by the general public to be sycophants to special interests.

Financial executives may have taken the winning of favored treatment from government to a new level over the past three decades, in part, to leapfrog themselves to the head of the 1%.  But it is hardly coincidence that those who colluded a few years ago to hollow out North Carolina’s billboard legislation hail from the nation’s three least trusted professions: car dealers, lawmakers and advertising practitioners.

Americans look down on the explicit corruption such as bribery in other countries, but what has become far more prevalent here is what Daniel Kaufmann, formerly of the World Bank and Brookings Institution and now head of the Revenue Watch Institute, defines and measures as “legal corruption.” 

People (and organizations) who mine government for favorable treatment hate the term rent-seeking.  Even to those who don’t know the meaning of the term, it seems slimy and demeaning, so perpetrators instead hide behind euphemisms such as, “deregulation,” “customer service,” privatization, “streamlining” and more recently, “systemic capture.”

Roadways are where it may be easiest to view the results of “legalized corruption” or “seeking rule changes for personal gain rather than to benefit the general public.”  For instance, down-east as I-40 cuts across the North Carolina coastal plain, residents and visitors alike are suddenly treated to a forest of billboard blight.

Protected by as well as catering to powerful special interests, officials in an extremely rural area along that stretch were successful at doing what South Dakota wasn’t: strip zoning roadsides as commercial areas occupied only by a row of huge billboards.  In cases such as these, billboarders are often caught establishing phony businesses in vacant buildings as a technical hedge.

The billboards pay next to nothing in fees and less than the cost of a steak dinner in taxes and their only value is created by publicly-funded highways.  So the only reason or purpose that can be conceived for this roadway circumvention and desecration must clearly be an effort to grant special favor at the expense of the public interest.

Nothing was done because those seeking these special favors have long since used similar techniques to neutralize or tie the hands of state and federal regulators and any related-commissions who would have levied sanctions had this been the late 1970s.

Billboard companies and their operatives have become expert at neutralizing government administrators by insisting that they remain “objective” whenever a concern is raised, rather than standing up for the public interest which essentially leaves the general public befuddled.

I saw this happen a few years ago in Durham, NC, where I live, when billboard operatives made a proposal to pry open Durham’s wildly popular 1984 ban on outdoor billboards.

Citizens expected city administrators to step up immediately and emphatically make the case for the long-standing ordinance, but they waited in vein.  Lobbyists for the billboarders had already politicized the process by demanding that city officials be “objective” and labeling any comments in defense of the statute as “personal opinion.”

In reality, this meant, “sit on your hands,” while we create as much public confusion as possible in an attempt to win approval.  This included luring non-profits and even some public agencies into voicing support by offering them free space on billboards while failing to mention that the proposal was contrary to current policy which was then, and still is, favored among residents by more than 9 to 1.

A few took the bait and I was complicit when someone with whom I served on a non-profit board surprisingly gave support to changing the ban.  I sat stunned as a committee that included one or more billboard interests recommended support for the change without ever once hearing from city officials on behalf of the existing ordinance.

I was caught off guard when a friend who headed another non-profit that had been approached voiced support and pressed for a board vote with little other discussion and before any presentation of the other side of the issue by city officials.  All the while, a billboarder who was a member of the body at the time failed to recuse himself.

Although refusing to vote, I am as responsible as anyone for not finding my voice in time to vociferously oppose what occurred that day.  I tried to make up for it later but the lesson is that even non-profits can be victims, if not complicit, to the techniques used to leverage what Kaufmann calls legal corruption.

Mystified by why those thought to be paid to enforce and passionately advocate for the current policy sat mute, a grass-roots movement of citizens came to the rescue and the proposal was eventually defeated, leaving the ban in tact. Only at the very end of the process did administrators speak to the issue and even then it was done in guarded terms and flat tones assured to be deemed objective.

There may be a lot of ways for citizens to get clarifications about public policy but special interests have made it all but impossible for those to be officially broadcast.

Failing in Durham, billboard interests set about instead to push a measure through the legislature which made state roads immune from local control as they run through communities and reneging on earlier compromises that had already doubled the area beyond what is needed for them to be viewed.

It is impossible to compromise with billboard interests.

Just this year, I’ve watched as an oversight board for the state agency overseeing billboard control asked to hear from all sides regarding the legislation.  However, only billboard representatives were invited to speak until Scenic North Carolina insisted on having the same opportunity at a subsequent meeting to speak on behalf of North Carolinians who overwhelmingly object to new legislation.

A commission that fronts for the legislature in the rules-making process has worked hand-in-hand with the billboard industry and ordered a state agency to compromise with these special interests, confirming what Kauffman writes about the pervasiveness of legal corruption as a means to seek private gain from government decisions.

It’s all legal.  Legalized corruption.  Capitalism is not to blame, according to Dr. Luigi Zingales at the University of Chicago Booth School of Business, because this type of corruption is the enemy of pro-market, seeking instead to tilt the playing field in one direction or another on behalf of special interests but not to level it.

It is also the story behind the story that is rarely written or told and the question behind the question that is rarely asked at the very bottom of why democratic governments can become marginalized and alienated from the popular will.

The Fiery Soldier For Sense of Place

He walked unsteadily into the room using two canes but still with the grace of a former soldier.  More than 30 years after I first began to benefit from his wisdom as a national sense-of-place reformer, I recently found myself meeting him face to face in a room that was immediately filled with his passion and his intellect.

I first became aware of Edward T. McMahon when I was just a decade into my now-concluded 40-year career in community-destination marketing and a little full of myself after receiving a 1982 CLIO Award in the television/cinema category as producer for the still evident Wild About Anchorage campaign which was created in part by Bob Kurtz who, by the way, gave me the nick name I use on Twitter, Topbull, as in the bull moose mascot “Seymour of Anchorage” which was part of the campaign.

Some jump to the plausible, but inaccurate, conclusion that the handle relates to my time as head of the community marketing agency for Durham which is known as “The Bull City,” but I had it long before I arrived here.

While sense-of-place was just emerging for me as a concept back then, it had always been in my subconscious approach to my work.

Back then Ed was teaching law and public policy at Georgetown University Law Center after earning a law degree there subsequent to receiving an M.A. in Urban Studies from the University of Alabama.

At the time, Charlie Floyd, a friend of mine now in North Carolina and Ed were part of a group resurrecting a national roadside reform movement much like the National Roadside Council had been from the 1920s-1960s.  Initially it was called the Coalition for Scenic Beauty which morphed into Scenic America in 1989 just as I was arriving in Durham NC, where I still live, to jumpstart community marketing here.

Rivaled only by Dr. Scott Russell Sanders and his seminal essay entitled The Geography of Somewhere, Ed’s prolific writing, both when he worked at The Conservation Fund and also since 2004 at the Urban Land Institute where he currently holds the Charles E. Fraser Chair for Sustainable Development and Environmental Policy, has shaped my understanding of the central importance of sense-of-place.

When my friend Tania Dautlick recently turned me onto The Sustainable Cities Institute, I wasn’t at all surprised to see Ed on the advisory board there.

Favorite Edward T. McMahon essays of mine include his most recent entitled The Distinctive City where he poses the thought provoking question: “Do you want the character of your city to shape the new development, or do you want the new development to shape the character of the city?”

Another of my favorites of his is The Place Making Dividend which is filled with observations about the economic importance of being different such as “…many American communities are suffering the social, economic, and environmental consequences of being places that simply aren’t worth caring about. The more one place (one location) comes to be just like every other place, the less reason there is to visit or invest.”

Another is Lessons In Community Development Learned from Traveling where he writes “Travel teaches us that those communities that have retained their unique character are places that use vision, planning, and design to preserve the features that make them special. It also teaches us that progress does not demand degraded surroundings.”

In an essay entitled Tourism and the Environment, Ed put his finger on why sense of place is about so much more than facilities and activities when he writes, “… anyplace can create a tourist attraction, but it is those places that are attractions in and of themselves that people most want to visit.”

I feel so blessed to hold the many perspectives I learned from Ed and then to finally meet him in person and be able to tell him so.  I credit him for much of the success I enjoyed in my career and and also for the passion I have as a roadside reformer in retirement.

If you are involved in community-destination marketing or you want the destination marketing organization in your community to assume its customary responsibility of serving as guardian of sense of place where you live, you can do no better than to relish and share this one last “Edism”:

“Place is more than just a location or a spot on a map. A sense of place is a unique collection of qualities and characteristics – visual, cultural, social, and environmental – that provides meaning to a location.

Sense of place is what makes one location (e.g., your hometown) different from another location (e.g., my hometown), but sense of place is also that which makes our physical surroundings worth caring about.”

Resurrecting an Advocate for Scenic Preservation

A group of us from across the state, including a handful from Durham, are resurrecting Scenic North Carolina as a statewide voice for scenic preservation.  I've been elected to take a turn as president and soon I will explain how others can get involved.

Scenic North Carolina is already listed as an affiliate of Scenic America and working with others across the country to oppose blight and promote alternatives. Unfortunately, Scenic North Carolina fell dormant a decade ago, and in its absence a ghastly overreaching piece of billboard legislation was rammed through the legislature in the last session pushed by special interests that are wallpapering views of one of the nation's most scenic states behind 8000 outdoor billboards along roadsides and throughout communities.

The mission of Scenic North Carolina will not only be to stand up against blight such as outdoor billboards, but to promote alternatives to this long obsolete form of advertising with exit logo signs and a coherent system of statewide wayfinding signs.

But Scenic North Carolina is about much more than eliminating billboard blight. Scenic preservation is about protecting, restoring, and preserving scenic attributes of our state including the unique sense of place of our communities, which has always been at the heart of our state's successful pursuit of economic vitality including tourism.

Scenic North Carolina will be equally concerned about trees and landscaping along city streetscapes as well as state roadways and medians and with transforming parking lots into beautiful public spaces.

Scenic preservation is also about placing a true market value on native and establish trees that goes beyond their value only as pulp to include their well documented and quantified role in carbon sequestration, pollution control, private property values, crime reduction, cooling and scenic easement.

Scenic preservation also includes parks, trails and other public spaces. It includes appropriately sized on-premise signage, lighting standards, burial of utility lines, protection of landscaping during construction, litter and graffiti removal, historic preservation, beach, lake, river and stream cleanup and restoration and more.

Scenic North Carolina will give voice to the nearly 8 out of every 10 North Carolinians who, in scientific, generalizable surveys, view blight such as billboards as a desecration on our state.