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Not So Freeways: California State Route 91, HOT Lanes, and the Future of the Public Sector

The privilege of using the limited-access HOT (high-occupancy toll) lanes on SR 91 is not only a function of how many people you ride with but of how much you are willing to pay.
Charlie Bertsch

Issue #42, March 1999

Driving into Orange County on California State Route 91 from the newer, less expensive suburbs of Los Angeles to the east, you experience what could be a sign of things to come. Like many American freeways, the regular lanes on SR 91 are supplemented by lanes to which access is limited. But these are not the HOV (high-occupancy vehicle) lanes with which we have become increasingly familiar since the 1970s. The privilege of using the limited-access HOT (high-occupancy toll) lanes on SR 91 is not only a function of how many people you ride with but of how much you are willing to pay.

HOT lanes operate on the principle of "congestion pricing" that most Americans already know about from paying their long-distance bills, buying airline tickets and purchasing other goods and services for which the price varies depending on the time of the day, week, or year in which they are used. In the case of SR 91, congestion pricing means that the price is highest during rush hour. Because the expense of traveling on American roads has almost always been either free or subject to a flat-rate toll, the use of congestion pricing on SR 91 provokes questions about the future, both of the nation's highways and of its public services as a whole. The fact that the freeway's HOT lanes are run, not by the state government through Caltrans, but by a consortium named the California Private Transportation Company only compounds the uncertainty that congestion pricing introduces into the distinction between the public and private. As a consequence, SR 91 provides a valuable opportunity to reflect on the role of the state at a time when its powers seem to be rapidly diminishing.

Although Americans may have become comfortable with the concept of variable rates in other aspects of their daily lives, in the context of the American road they are still imbued with an aura of novelty that inspires both excitement and dread. The road holds a special place in the American psyche. Despite the fact that the nation's roads, tunnels, and bridges have historically been among the public works most heavily subsidized by government, their place in the popular imagination is distinct from that of other government projects. The controversy surrounding speed limits is a good example. When Americans complain that the imposition or enforcement of speed limits unnecessarily restricts their freedom, they frequently act as if the government were interfering where it does not belong. But they forget that the road system we have today would never have existed without government interference. They seem to believe that the nation's roads are a natural resource which the government seeks to control through regulations, instead of a national resource constructed by the government.

This belief isn't as strong in the eastern portion of the United States, where people are accustomed to using turnpikes for which they pay a fee depending on the number of miles traveled. But it is deeply rooted west of the Mississippi, where toll roads are rare. Even in a state as populous as California, people are likely to act as if it's their natural right to drive free and fast. It would be political suicide to propose that the state's freeways be converted into self-supporting toll roads. Far less radical moves, such as former Governor Jerry Brown's push to install the nation's first HOV lanes on L.A. freeways in the 1970s, have inspired public outrage. To this day there are many drivers who disobey the rules for HOV usage on principle, risking fines of several hundred dollars. From this perspective, California seems like an unlikely place to experiment with congestion pricing. And yet the HOT lanes on SR 91, far from being a source of outrage, have so far proven extremely popular. Californians' animosity towards tolls is being outweighed by other considerations.

Because the populous regions of Southern California spread over such a huge territory, mass transit is less effective than it is in a more densely populated metropolitan area like New York City. While the use of both short and long-distance trains is on the upswing around Los Angeles -- a subway system and numerous light rail lines are presently under construction -- there are many suburbs, particularly the newer ones to the east and north of the city, that are unlikely to have commuter rail service anytime soon. More problems are created by the fact that a large percentage of the jobs in the vicinity of Los Angeles are not located anywhere near the two city centers -- one in its traditional downtown and the other in West Los Angeles Ð that provide the focal points for its new subway system. If you work in Costa Mesa and live in Riverside, as some of the people who use SR 91 do, transportation solutions that are intended to bring commuters from the suburbs to the skyscrapers of Los Angeles provide no help at all. Expressways are many people's only option.

Southern California is not the only place where commuter patterns have become less predictable. Throughout the United States and Europe, industrial parks in what were once residential suburbs have become increasingly popular with businesses unwilling to pay the high costs of urban office space. This trend was once most obvious in fast-changing high-tech industries, for whom the prestige of a downtown address is unnecessary. But it is so widespread these days that rush hour in most metropolitan areas no longer proceeds in one direction. Although the flow of traffic into the center of cities is still greater in the morning than at night, commuters traveling in the opposite direction still find themselves in stop-and-go traffic on an all-too-regular basis. Many commuters never go into the center of cities at all, traveling instead from one suburb to another. Because this is what most of the people who use SR 91 are doing, the success of its HOT lanes is a reflection of the complex traffic problems of the area this expressway serves. But is this a sufficient explanation for the HOT lanes' popularity?

SR 91 has become something of a "poster freeway" for advocates of congestion pricing. Most plans to introduce toll lanes are still on the drawing board, so SR 91 sets an extremely important example. If its HOT lanes were a failure, it would be much more difficult to convince state and local governments that Americans are willing to pay for the right to drive faster. But because SR 91's HOT lanes have been deemed an unqualified success, policy analysts are sure to mention the expressway in their reports. The fact that those HOT lanes are a product of the private sector makes the example of SR 91 all the more important. There's nothing that makes government officials happier these days than the idea that it might be possible to solve the problems of society without having to spend taxpayers' money. When the nation's city council members, mayors, and governors speak about the necessity of involving the private-sector in government projects, it is this sort of deus ex machina that they have in mind.

Public-private partnerships are rarely as kind to taxpayers as they seem on paper. This is particularly obvious in the case of new sports facilities, for which the private contribution made by the team invariably ends up constituting a smaller percentage of the final cost than initial projections implied. Although the shortcomings of other public-private partnerships may be less spectacular, they derive from the same basic problem: the private side of the partnership is more interested in making money than protecting the public interest. The real purpose of public-private partnerships is to transform the public into a source of venture capital for the private sector. In theory, the profits that private firms make from these partnerships will generate enough tax revenue to pay back the public with interest. Unfortunately, capitalism rarely works this way in practice, particularly in its latest globetrotting incarnation. Some of the money raised by a public-private partnership will make its way back to the public, but it's unlikely that the public will make a profit on its investment. The money doesn't stay at home. It travels all over the place, making more profits as it goes. And the private sector is better prepared to take advantage of its peregrinations than the public.

The people who see SR 91 as a model for reengineering American expressways make the point that it is a private venture, as if to address concerns about the expenditure of public money. But they fail to acknowledge the role government played in its development. Although the California Private Transportation Company did build the HOT lanes on SR 91 with private money, it built them in the median of an already existing public highway. One of the most painful parts of building a road where people already live is securing a right of way. It is inevitable that some individuals will lose land and possibly their homes as a result. This was not a problem for the California Private Transportation Company. The hard work of removing obstacles from the land and making it flat had also been accomplished. The HOT lanes on SR 91 were built on public land that had been prepared for road building with public money. To bill those lanes as a product of the private sector is to conceal the work of the public sector that made them possible. In other words, it is a public-private partnership masquerading as a private solution to a public problem. The sleight of hand by which the public's contribution to the private sector disappears is an all-too-familiar sight these days. Ever since the neo-conservative revolution hit its stride in the days of Margaret Thatcher and Ronald Reagan, governments around the world have been privatizing their holdings. Despite the fact that the conservatives are now out of power in the United Kingdom, France, Germany, and the United States, the trend continues. It's just that the wolf of privatization is now wearing sheep's clothing.

When people who still believe in the importance of public space take a close look at SR 91, they see it as a sign that this trend toward privatization is entering a new phase. The expressway's location seems particularly significant in this regard. Long a stronghold of American conservatism, Orange County is the sort of place where people tend to be deeply suspicious of government intervention into everyday life. The conservatism that predominates in the western half of the United States is strongly influenced by libertarian ideology and, although Orange County is hardly the rangeland of Montana or Wyoming, many of its residents over the years have imagined themselves to possess a spiritual kinship with the inhabitants of the West's empty places. The decision to rename the county's airport after movie star John Wayne is a perfect example. It doesn't matter that neither he nor most of the citizens of Orange County have any personal connection to what remains of the "Wild West." What matters is that they feel that connection. And, to the extent that they do, they are likely to believe that the government has a limited role to play in human affairs, one which can largely be reduced to keeping the peace. The idea that the government should take money from private citizens in order to spend it on public works for the benefit of all is anathema to them.

Until recently, the construction and maintenance of highways was one of the few public works to which conservatives of this sort were likely to consent. Even while they were spearheading the movement to limit property taxes that resulted in California's Proposition 13 and copycat measures throughout the United States, they were relatively quiet about the use of public money for the building and operation of roads. But because they are always on the lookout for any government action that discriminates against the individual for the benefit of a group, they have never liked the fact that so much time and money has been devoted to the construction of HOV lanes on existing freeways instead of new lanes open to everyone or, more desirable still, new freeways. In practice, of course, the "individual" these conservatives worry about is almost always a white, male taxpayer of middle income or better -- or at least somebody who acts like one.

Orange County therefore seems like the perfect place to experiment with privatizing the nation's road system. The fact that SR 91 passes by the Richard Nixon Presidential Library only makes its location that much more appropriate. It's easy to see this new form of expressway as another portent of the totally privatized world that progressives fear to be just around the corner. Here, it seems, is an example of what society will be like when the conservative backlash against the legacy of the 1960s -- and, less directly, the 1930s -- which began with Nixon's election in 1968 and truly came into its own during the late 1970s has finally run its course. It will be a place where no services are free of charge, where the market determines what price they will bear, and where, finally, the experience of public space will be one that divides Americans instead of uniting them.

But as instructive as such doom-filled visions can be, indulging in them can blind us to the details of what is happening in the present. When the Federal government threatened to punish states for not developing HOV lanes on their freeways, it did so with the intention of promoting carpooling and mass transit as alternatives to solitary commuting. The people who pushed for the construction of HOT lanes on SR 91 have a different agenda. Although these lanes can be used free of charge by vehicles with three or more passengers, the fact they are also used by single-person vehicles implies that HOV lanes are an inadequate solution to the nation's traffic problems. The message of SR 91 is that people would rather drive alone and are willing to pay a fee to do it faster. If HOV lanes provide the impetus for commuters to come together in carpools, company vans, and buses, the HOT lanes on SR 91 provide a reason to forego these temporary collectivities. In short, they promote individualism. People can choose to compromise their privacy by traveling in carpools or buses. They can choose to compromise their free time by sitting in stop-and-go traffic. Or they can choose to pay for the privilege of using the HOT lanes in privacy.

Although something important disappears when the freeway ceases to be free for all, defenders of HOT lanes claim that they make up for its absence by providing increased flexibility. They believe in what you might call a "conservation of freedom." Whatever is lost when people are willing to pay a fee is recouped as freedom of choice. The debate about national healthcare provides a helpful analogy here. In order to combat the idea that universal coverage would be superior to our present system, pundits described the socialized medicine of countries like the United Kingdom as a kind of enforced mediocrity, in which the special needs of individual patients are sacrificed for the good of the collective. But this conceals the reality of the American medical industry -- the fact that few people can actually take full advantage of its quality -- behind its own self-promotion. Americans only have the freedom to choose the best doctors and the best hospitals if someone is willing to foot the bill. If you have the wrong health insurance or live in the wrong part of the country -- and most Americans do -- you are far more likely to experience the medical industry at its worst than its best.

For those people who can take advantage of HOT lanes without having to make any compromises, expressways like SR 91 will undoubtedly improve the experience of travel. There's no denying that it's preferable to spend fifteen minutes driving to work than forty-five minutes or an hour. But who will be able to enjoy this privilege? Despite what busy lawyers, doctors, and executives may tell you, their lives are no more hectic than that of the single mother who has to drop her children off at daycare, drive her twenty-year-old car to work hoping that it won't die on the way, do it all again on the way home and then cook, clean, and help her children with their homework. Yet unlike those upper-middle-class professionals, she will be hard-pressed to pay for use of the HOT lanes. And, precisely because of her busy schedule and the fact that she must make more than one stop during her commute, she will also find it difficult to use the HOT lanes in a carpool or bus. It wouldn't be hard to make provisions for people like this single mother. Discounts could be given to lower-income commuters. Or the fees could be levied on a differential basis: the more you make, the more you pay. But plans of this sort would be unlikely to meet with the approval of many conservatives. At a time when the right and its collaborators in the center such as President Clinton have nearly succeeded in dismantling the welfare state, the idea that the government should intervene on behalf of the nation's less fortunate commuters would surely be greeted with animosity.

The strangest aspect of the controversy surrounding HOT lanes is that the idea of congestion pricing has been met with favor by many environmentalists on the left. It is well known that the abortion-rights movement modeled its protests after the progressive social movements of the 1960s and 1970s. Perhaps something similar has been happening with congestion pricing, with the right twisting the innovations of the left for its own ends. As transportation activist Charles Komanoff notes, it is unfortunate that congestion pricing "is sometimes equated with harmful new toll roads, like SR 91 in Orange County, CA, which is facilitating sprawl by letting wealthy drivers leapfrog congestion and access exurban development," because it has the potential to do precisely the opposite. "In places where traditional transit is more problematic, like Southern California, an equitable way to curb congestion and pollution may be to charge a uniform rate for car travel, say, a nickel a mile, and return the revenues ($5 billion a year in this example) equally to all residents - a $350 per capita rebate. A landmark 1994 study by Michael Cameron of the Environmental Defense Fund details how poorer households would benefit despite curtailing some trips, because their rebates (contributed disproportionately by richer motorists) would more than compensate for the reduced travel." As Komanoff adds, this plan would work because "the wealthy drive four times as much as the poor."

The problem with SR 91 is not that it puts congestion pricing into practice. The problem is how it does so. So long as the search for transportation solutions is motivated by a desire to transform the public into the private, the American road system will be headed for a dead end. But the story doesn't have to end that way. We need to expose the ways in which the public sector is being used to benefit private industry. No matter what we do, we're going to have to pay in the end. But we might as well keep control of what we pay for.

Charlie Bertsch is a Ph.D. candidate in the Department of English at UC-Berkeley, completing a dissertation on the relationship between post-WWII American literature and political theory. He can be reached by e-mail at the following internet address: <>.

1999 by Charlie Bertsch