Preempt This! Michigan Cities Fight Back

This article by Daniel Kraker originally appeared in the Fall 2000 issue of our New Rules Journal.

What does it take to get a group of polite Midwesterners riled up enough to propose an amendment to their state constitution? Michigan legislators can tell you it’s not too difficult: just pass a series of laws that weaken local authority.

By Daniel Kraker

Oneyear after activists disrupted the Seattle meeting of the World Trade Organization with claims that global corporations wield too much power over governments, Michiganders have lodged their own protest against distant authority.

On the state’s ballot in November is Proposition 2, an amendment to the Michigan Constitution that would require a two-thirds majority to enact any law that diminishes local authority. The initiative is backed by residents and municipal leaders who are outraged at a series of laws, recently passed by the state legislature, that preempt traditional decisionmaking authority at the local level.

Which levels of government should exercise what kind of authority? Most often the focus of this ongoing debate is the relationship between the federal government and the states. This year’s protests against globalization have shifted the focus to unelected international economic organizations and their increasing willingness and ability to preempt the authority of all levels of government.

In Michigan, however, the dispute has shifted again, this time to the relationships between state and local governments. While it certainly won’t garner the headlines of the "Battle in Seattle," the work of local governments in Michigan is arguably even more important because it recognizes the need for rules that reclaim our sovereignty and reassert the rights of communities to determine their own futures.

The Politics of Preemption

Onthe last day before adjourning on December 9, 1999, Michigan legislators passed a bill that effectively precludes all local regulation of agriculture, including controversial industrial-size feedlots. The misleadingly titled Michigan Right To Farm Act even blocks private civil nuisance lawsuits in virtually all cases.

Michiganis merely one of the latest in a long line of states that have taken away the ability of municipalities and counties to regulate agricultural operations within their boundaries. Iowa has had an agricultural preemption bill on the books since 1946. North Carolina passed theirs in the late 1980s, and the results have been disastrous, both to that state’s rural economy and to its environment. Family farms have vanished from the countryside, the spin-off economic benefits that they generated have disappeared, and dozens of highly publicized manure spills have poisoned wells, killed thousands of fish and devastated coastal ecosystems.

Other states, including Missouri, Illinois and Ohio, have followed North Carolina’s lead and suffered similar results. Not surprisingly, states that have defended their local governments’ authority to regulate industrial feedlots -including Nebraska and South Dakota – have largely succeeded in keeping them out and have maintained a vibrant small farm sector.

Inthe 1999 legislative session Michigan’s state legislature also passed a law that preempted the right of cities to sue gun manufacturers. Supported by the National Rifle Association, a version of this bill(Public Act 265, 2000) has already been passed in more than 15 states in response to efforts by many cities to recoup some of the social costs of escalating gun violence.

But the straw that broke the backs of many local officials was a state law (Public Act 212, 1999) that preempted the laws of some 80 Michigan cities that required municipal employees to live within the city’s borders. The frustration voiced by Hazel Park City Manager Joseph Young is indicative of local officials across the state. "Last November, our citizens voted to add a residency requirement to the city charter, and then the Legislature did away with that," he says. "The Legislature should not be mandating what local communities want."

Onceagain, Michigan is not alone. Minnesota also passed a state law that preempted city residency requirements, much to the chagrin of the state’s two largest cities, Minneapolis and St. Paul, both of which required their employees to live within their borders.

The Politics of Devolution

Fearfulof further erosion of local control, Michigan towns and cities went on the offensive. With the backing of the Michigan Municipal League, local governments drafted a ballot initiative (and gathered the requisite 300,000+ signatures) to require a two-thirds vote to enact any law that diminishes local authority. If such a requirement would have been in place in 1999, the Right to Farm Act, which was passed along strict party lines, would never have been approved.

Perhapsthe most remarkable aspect of the ballot initiative is that it made the ballot. Voters are typically motivated by specific issues – the substance of governance – not by relatively arcane questions about the process of governance. But local officials in Michigan have succeeded in making the question of where authority should be located a front-page, and bitterly contested, issue.

Today’s political climate stands in stark contrast to the early years of our nation, when the debate over federalism occupied the hearts and minds of our leaders and the public at large. The distinctly American brand of federalism that emerged from the Constitutional Convention was a compromise between those who feared the parochialism and homogeneity of small units of government and those who felt that government works best and is most legitimate when it is most intimately connected with its citizens.

For the last two centuries, however, decentralists have been fighting an uphill battle as political power has increasingly been centralized in Washington. The courts have played a leading role in the shift toward more remote decision making by aggressively preempting the authority of smaller units of government to regulate commerce. Only in the last century has the municipal home rule movement gained a modest degree of autonomy for some local governments.

Michigan’s ballot initiative reflects a widespread disenchantment with politics as we have come to know it. As decisionmaking has moved further and further away from those who feel the impact of those decisions – to state capitols, to Congress, and now to unelected international trade tribunals – apathy and disgust with the political system have risen to new heights. The influence of money on policy at the state and federal level has further disillusioned an already cynical American public. Local governments are no panacea, but local control at least creates the conditions for democracy and political participation.

Despiteits decreasing importance, local government remains immensely popular. A 1990 Times Mirror poll found that 77 percent of citizens agreed that"the federal government should run only those things that cannot be run at the local level." Other polls show that since 1972 public confidence in the federal government has dropped from 74 percent to about 40 percent. Yet over the same period confidence in local government has remained static at around 60 percent.

Politicians,keenly aware of localism’s popularity, have long recognized the importance of community and the devolution of political authority – at least rhetorically. Action, however, has never consistently backed up campaign promises. "The policy seems to follow the constituency," observes Lenny Goldberg in The American Prospect. "If ranchers on federal lands want local control but cable companies insist on local preemption, so be it."

Michigan’s ballot proposal, if passed, would in effect ensure that communities are paid more than lip service. It would guarantee the right of local governments to make the decisions that affect their lives of their citizens. Indeed Proposition 2 could serve as the spark that reinvigorates American federalism and restores the healthy tension between the federal government and local governments that our founders envisioned.

Opponents to the ballot initiative have united under the banner of "Citizens for Common Sense Government." The group, funded primarily by the Michigan Chamber of Commerce, contends that the proposal would introduce"minority-rule" to the Michigan Constitution, and would also result in years of costly litigation at taxpayer expense.

Butthe charge most often voiced is that the proposal is antibusiness. Jim Barrett, Chamber president and CEO, argues that the ballot proposal would "open the floodgates for a wave of new local government regulations on business and there would be little the legislature could do about it." The Chamber’s number one target is local living wage laws. The state legislature, with the Chamber’s backing, has proposed bills that would place ceilings on living wage laws, but would likely never be able to muster a two-thirds majority if the amendment is passed by voters.

According to Ingrid Sheldon, mayor of Ann Arbor and chair of Let Local Votes Count (the group – organized by the Michigan Municipal League – that is the main backer of the proposal), many local chambers of commerce have broken ranks with their state association to support the ballot initiative. "Local business owners who want to expand," she says, "can go down to city hall and work with their community development department to come up with a site plan that will fit with the ‘flavor’ of that particular community." The state chamber, by contrast, wants fewer local laws and more"one-size-fits-all" state laws to make it easier for businesses to operate in different communities. But "if the state enacts cookie-cutter regulations and red tape," argues Sheldon, "those valuable relationships which bolster the local business community will be lost."

At this writing (two weeks before the vote), the polls show Proposition 2 winning by a wide margin. The biggest sticking point is in the vagueness of the proposal’s language. Opponents argue that it would apply to a wide range of existing laws, including Michigan’s state laws governing the distribution of revenue sharing and the allocation of transportation funds. Future changes to these formulas, they argue, would be virtually impossible to achieve with a two-thirds vote. Amendment supporters rejoin that Proposition 2 requires a two-thirds vote only on matters of "municipal concern," defined as a matter over which a municipality would traditionally be able to exercise its powers. Because local governments currently have no say in these formulas, argues Let Local Votes Count, a simple majority vote is all that would be needed to change them.

Can’t Governments All Just Get Along?

Theintent of Michigan municipalities is not to eliminate the participation of the state legislature in decisions that affect them. State houses, after all, are made up of representatives of localities who are elected to serve their constituents. The ballot initiative does not expand upon the authority of any local unit of government, but rather seeks to protect existing authority. It places the burden of proof on higher levels of government to show that they are justified in intervening with laws that local governments have democratically enacted. Europe has already embraced this principle of subsidiarity, which holds that wherever possible, decisionmaking should be localized.

Intoday’s complex political world, the traditional delineations of city, county, state and nation are becoming increasingly obsolete. Regional governance is becoming more vital as metro areas struggle to combat sprawl, maintain equity in school funding and address other issues that transcend municipal borders. Likewise, at the international level, environmental problems rarely stay confined within national borders. Air and water pollution, climate change and the transport of hazardous waste are truly global problems that require democratic, international governance structures to address them.

The protection of civil rights also often requires the intervention of higher levels of government. But these should exercise authority cautiously to allow for maximum individual freedom. They should establish floors rather than ceilings, a minimum standard of adequacy that allows communities the autonomy to do even better. The federal government, for example, requires employers to pay a minimum wage, but allows states and localities to raise the bar to mandate even higher wages.

Ifthe major decisions that shape one’s life are made thousands of miles away by transnational corporations and unelected international tribunals – or even a couple hundred miles away in a state legislature- there is little to be gained from participating in the political realm. But if authority is brought back closer to home, if decisions are made by those who feel the impact of those decisions, then politics in this country will be reenergized. The efforts of local officials in Michigan are hopefully only the first step in this process.