Disney v. Democracy? A Public Choice and Good Governance Analysis of Florida’s Reedy Creek Improvement Act of 1967 and Its Resulting Regime

ABSTRACT:

The Reedy Creek Improvement Act of 1967 [hereinafter “1967 Act”], by all accounts is an extraordinary piece of legislation, designed principally to serve the private interests of a private corporation and its operation of Walt Disney World. This Report concludes that the 1967 Act, the political environment surrounding its creation and the maintenance of authorities under the Act, and governance pursuant to the Act have all accomplished a dangerous relaxation of normal limits on governmental power and structures of democratic accountability. In its analysis, this Report brings scholarly insights to bear upon the inquiry from constitutional law, statutory interpretation, democratic governance and institutional analysis from law and political science, land use planning, local government law, urban planning, administrative law and regulatory policy, and the interdisciplinary work animating positive political theory (explaining how politics actually works rather than how we wished it worked).

In particular the insights from public choice theory are applied to the 1967 Act, the RCID, and Disney for the first time in any substantial way as a matter of academic inquiry. As part of its work, the Report identifies the types of “masks” that Disney has used to obscure the private nature of the legislative deals it has profited from by attempting to clothe the 1967 Act and RCID authority in public interest-sounding frames. This Report also explores the scholarly literature explaining why agencies with single-industry-enhancing purposes or a single- or primary-entity constituency, like the RCID, tend to be captured by entities they govern.

Ordinary institutional design and limits, democratic accountability mechanisms, and constitutionally-grounded processes of good governance serve important purposes. They exist to ensure that government powers remain limited, democratic principles remain protected, citizens remain empowered, and powerful interest groups like Disney are thwarted from capturing the strong arm of the state to advance their private purposes. Indeed, the preservation of these principles of limited government and the rule of law requires erecting and respecting hurdles to government intervention to (1) ensure that government interference in private affairs is limited to serving the public interest and to those actions truly necessary and requiring such public intervention; and (2) to maximize the space for private ordering and market competition free of special privileges so that economic freedom, competition, innovation, and growth may flourish. Consequently, governance is intentionally difficult and time consuming, with the opportunity for the kind of broad public participation and scrutiny that leads to optimal decisionmaking, including balancing competing interests and recognizing that the neutrality principle grounding good governance prohibits picking favorites. Legislation that sets a framework risking the relaxation of these norms should be re-evaluated. Such re-evaluation is the focus of this Report.

This Report was originally filed with the Florida Legislature in December 2023 as “A Legal and Structural Analysis of the Legitimacy and Consequences of the Governance Regimes Established By the State of Florida’s 1967 Reedy Creek Improvement Act and Associated Laws.” The 2023 Report serves as the draft for a law review article now in progress by the working title at the head of this abstract.