Your Ad Goes Here: How the Highway Beautification Act of 1965 Thwarts Highway Beautification

University of Kansas Law Review, Vol. 48, 2000

Posted: 4 May 2000  

Craig J. Albert

Reitler Brown & Rosenblatt LLC

Abstract

This Article traces the genesis and subsequent implementation of the billboard control provisions of the Highway Beautification Act of 1965. It explains why, more than thirty years after proponents had hoped that billboards would be eradicated, billboards remain a fixture of America's streets and highways. Problems of funding and the law's exceptions and exemptions explain part of the failure of policy, but a large measure of blame belongs to the Act's disincentives for states to act independently to control outdoor advertising within their borders. The author notes that Congress created a novel provision that, as implemented, thwarted states' efforts to use their police powers to control billboards. The power that Congress used to create the national program - the conditional spending power - today stands ready to penalize states that wish to control billboard blight, even though Congress has failed to fund the federal share of obligations due under the Highway Beautification Act. In effect, Congress has created for itself a new constitutional preemptive power akin to a "Dormant Spending Clause" which thwarts state action in the absence of affirmative federal spending legislation. That power is not and should not be a part of the federal constitution for it has the potential of causing Congress's power under the Spending Clause to supplant the autonomy of states. The article concludes by observing that, while the Highway Beautification Act is at its core a weak statute, there exist opportunities under the qui tam provisions of the False Claims Act for private litigants to compel states and the federal government to enforce the vestiges of the Act.

Keywords: Tenth Amendment, Public Choice, Billboards, Outdoor Advertising, Visual Pollution, Conditional Spending, Preemption, Qui Tam

JEL Classification: K11, K19, K32

Suggested Citation

Albert, Craig J., Your Ad Goes Here: How the Highway Beautification Act of 1965 Thwarts Highway Beautification. University of Kansas Law Review, Vol. 48, 2000. Available at SSRN: https://ssrn.com/abstract=221292

Craig J. Albert (Contact Author)

Reitler Brown & Rosenblatt LLC ( email )

800 Third Ave.
21st Floor
New York, NY 10022
United States
212-209-3061 (Phone)
212-371-5500 (Fax)

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