Revolting Development

It's how the game has been played for far too long. Journalists rant and rave, and gadflies scream conspiracy, but nothing changes. No one has the money to fight City Hall.

No one, that is, until the Goldwater Institute decided to file suit.

Darcy Olsen, the institute's executive director, says that the genesis of the suit was a $1 million grant. With that money, she says, the institute hired attorney Clint Bolick to start a litigation center.

Preternaturally cheerful, as well as a budding novelist, Bolick is also one of the sharpest strategists in the conservative movement ("The Merry Revolutionary," March 7, 2002).

Bolick's big idea: Change the world through legal precedent. The lefties did this, of course, throughout the '50s and '60s. School desegregation, abortion rights — neither came from elected officials taking the lead. It was lawyers, and the judges who were convinced to see things their way.

As Bolick intuited, there are two sides to every coin, including judicial activism. Because of the work of lawyers like him, the courts started seeing different sorts of precedent-setting cases in the 1990s. Thanks to Bolick and the U.S. Supreme Court, poor kids in my hometown, Cleveland, can use government-financed vouchers to attend private schools. (And believe me, it would take only one hour in the Cleveland Public Schools to convince even the biggest public education supporters that vouchers are, in fact, a really good thing.) Because of Bolick's work for the Institute of Justice, Arizona residents also enjoy a much stronger right to keep their property even if the government wants to, say, turn it over to well-connected developers for some "better" use.

Bolick believes that the Arizona Constitution expressly forbids the sort of giveaway that Phoenix is attempting in the CityNorth case. Even without the botched financial analysis, he says, the government simply cannot give its bounty to private interests.

"We do not bribe businesses to come into this state," he says. "It's as simple as that."

On its face, Bolick's argument is novel. While they're not always this big, these types of subsidies have been common for years.

They have yet to face this sort of challenge, at least in Arizona.

But you only have to read the state constitution to suspect that Bolick is, in fact, right. The words seem clear. Neither the state nor any city, the constitution says, "shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation . . ."

Hmmm. No gifts or grants or subsidies? To any corporation?

I'd like to see Fennemore Craig explain away that one. But the sad fact is, even if there is no good defense for the CityNorth deal, we're still going to be paying the firm's managing partner a whopping $450 an hour to find one.

How can we not regret that?