How Preemption Can Erode Democracy And What To Do About It (Episode 80)

So there’s all kinds of different preemption in some states. Some of this is growing, like four states that ban soda taxes and it’s a rapidly growing movement as we’ll talk about in the interview but the overall point is that states are telling local governments they cannot legislate or do anything in these issue areas.

I did want to mention that the audio quality at times varies because we really wanted to get this interview with Kim. She’s doing a lot of traveling right now and so we caught her and we had a pretty good cell connection. Every now and then there’s some seagulls, it’s not something that Lisa put in for a local flavoring or anything. It’s just there’s some noises in the background from time to time, but I think that it’s a very high quality interview and that people should be able to hear it pretty well.

The other part of the job is actually to create opportunities to either counter this, again, abuse of state preemption, figure out ways that we can strengthen local democracy. I mean, what this is is really an erosion of local power and local autonomy and local authority. Part of what we are trying to do is not just fight back and be on the defensive but also think about offensive opportunities to really reinforce the need for local laws and local power.

So, what we are seeing now is not floor preemption. What we’re seeing is actually two things. One of them is, is we’re seeing preemption by the state intended to stop local law making, period. So the idea is we’re watching an anti-regulatory agenda go forward. So what the states are doing is they don’t intend to act, for example, on raising the minimum wage and they would prefer, thank you very much that the localities don’t either. So they create what we call vacuum preemption.

So they aren’t acting on some sort of policy remedy and they are not allowing the localities to act either. So they’re basically handcuffing the cities and keeping them from acting on a policy and they’re not intending to act either. No minimum wage increase is going to happen in many of these states where the preemption exists.

Then the other thing we’re seeing is really some very disturbing trends about limiting local power, limiting the power not just in certain realms, like over business, but really limiting … stilling the initiative. For a long time, cities have been where innovation occurs and solutions are tested before they go broader to meet a very changing set of demographies and populations and needs and the cities are on the front line, they don’t have any choice but to come up with solutions. What’s happening now is this form of preemption is limiting their ability to pass local laws and frankly punishing them for initiative.

What you’re talking about is that things that would be very unpopular at the local level, they can get through at the state level and they can stop. So they didn’t have to worry about defending themselves at the local level.

I mean, you look at a state like Pennsylvania, which has very rural center and very urban bookends, both in Pittsburgh and Philadelphia, different needs given the urban population, those cities in Pennsylvania want the ability to regulate guns to keep schools safer. The rural communities are doing this as a way of life, “Guns are a part of our culture. We don’t want imposition from Harrisburg or on our right to own guns and carry them openly,” and all that other stuff. So I just think there is variation within States that should be reflected, and allowed to be reflected, in local law.

I don’t think it makes sense to have the exact same minimum wage and so it strikes me that Kansas City should be able to set a higher wage that’s more fitting, with everything from basic facts that we can agree on regarding cost of living, to where they believe an affordable wage may be, which is more something based on … more values may come into that. But we see the lawmakers from Jefferson City basically saying, “No, we think there should be a single minimum wage across, and we’re doing that mainly because we don’t like Kansas City and we want to keep them from doing something we don’t want.

And what this presumes is two things. One is the locality’s aren’t up to the task, or B, they’re going to go in a direction we, that the state legislature, politically disagree with. A lot of this is just plain about politics.

It creates model bills, many of them about preemption and the effort to consolidate power at the state. And so not only did they have money and now they had political muscle, but they also had a machine, they had a distribution network with bill’s already sitting on the shelf. I mean people don’t maybe understand that some of the bills we’re seeing now, the minimum wage bans and some of the core pieces of the sanctuary city bills are actually have been ALEC bills that have been around for 10 years or more.

At the Institute for Local Self-Reliance, we are a nonprofit, we’re deeply encouraged by your positive reviews. I think we just got our 55th five star review on the Apple ecosystem. And we’d love to have your help to help us do more work in these fields to reverse preemption. And you can help us out at I-L-S-R dot org slash donate, that’s I-L-S-R dot org slash donate. Or give us good reviews. Spread the word around. Help us out in general.

One of the things that your report does is it provides hard facts in terms of the number of states that are enacting preemptions. And I just, I want to pull out a few so that people have an example. We have 25 States that are preempting local minimum wage laws, 15 states ban local plastic bag bans, four States ban soda taxes, and anyone who’s listened to me has probably heard that there’s about 20 States that ban municipal broadband or have significant hurdles in front of it.

So those are some of the issues that we see a lot. But you cover all of the issues. You mentioned guns are a big issue. Certainly a lot of these issues around sick time. Minimum wage I mentioned. But those are the issues that have been coming up a lot. But we’re going to talk more about what’s happening, what we’re seeing right now that’s hopeful. I was going to say helpful, but hopeful is a better word. What happened in Colorado that gives us some hope right now?

Many of these bills were message bills. The idea is saying, “Hey, we’re out here. We object to what’s happening in our state. We’re just going on record with that objection.” But in Colorado, Colorado, this session, in earlier this year, became the first state to legislative repeal minimum wage. They also repealed a ban on local tobacco taxes that actually had been on the books since the late-70s. And most surprisingly, they actually repealed a preemption on localities weighing in on where oil and gas development can occur in their communities.

And so, I mean the, a shift in power, a structural change made all of that possible. And as you know, we saw also in Arkansas an encouraging sign, which was really the first repeal of a significant part of a broadband preemption. So I am very optimistic. I think that perhaps this preemption trend has been overplayed in some of these places and that folks are recognizing the consequences and costs of localities not being able to act in so many policy realms.

This plays out in a lot of ways. And as we just said, I mean Arkansas was a pretty red state and yet they repealed part of their broadband laws. So I’m encouraged. I just think it really does come down to, wait, you’re hamstringing us so much. I mean, when you can’t have access to what the internet provides, right? You are putting communities and businesses and healthcare providers, you’re putting many communities at a disadvantage. And so people are starting to like, oh wait, the cost of doing this is really large. And now that we can actually see what the consequences are, we need to peel this back.

So one of the things that he wrote is that “There would be no difficulty about efficient control or planning were conditioned so simple that a single person or board could effectively survey all the relevant facts.” And the second quote that I thought it would be useful is a little bit longer. “So long as the power that is delegated is merely the power to make general rules, there may be very good reasons why such rules should be laid down by local rather than by central authority. The objectionable feature is that the delegation is so often resorted to because the matter in hand cannot be regulated by general rules but only by the exercise of discretion in the decision of particular cases.”

And that’s basically a way, I would sum all that up by saying stuff is complicated. And a hundred people or 500 people or maybe up to 5,000 people in New Hampshire where every other person is in the state government, the legislative chamber. They simply cannot know what happens from the smallest towns to the biggest towns. And so I find that if I just, if I ignore all the different issues regarding equity, and I just think about this from a purely utilitarian standpoint of who can make the right decisions to move us forward, it is not possible for the state legislature to decide these things for all these different towns and cities.

I mean frankly that’s what we saw around up the ban on plastic bag bans. They added four states this year. That’s a lot. And same with e-cigarettes. They added three states this year that prohibit local action on e-cigarettes. So the other thing we saw is, again, the industry getting it’s way. I mean if you just look at the two examples I mentioned, you have the pocket bag industry and you have Juul and big tobacco coming in and really working their will on the legislature. And they have had continued success.

So we continue to see punishment attached to preemption. We also see, frankly, this attack, this increasing attack on core powers of cities. I mean you mentioned earlier the overturning of Tempe’s ability to regulate its own municipal elections. I mean there are some core powers that have historically always been the area of cities. And do not have a real question about the state’s ability to regulate, to go to your earlier question. And the state’s interest in regulating. So you’re looking at things like municipal elections, you’re looking at the contracting ability between local governments and the contractors they hire to do work for them. You’re looking at local zoning laws.

I mean if you really want to see an area where the state has gotten into micromanaging, I mean look at local zoning laws, whether it is Airbnb, or a prime example is Miami passing an inclusionary zoning law, which basically requires affordable housing to be attached to a development inside the city, a market-valued development. And it was immediately, within several months, preempted by the Florida legislature.

What is the interest of the state in whether affordable housing is built in Miami? So I mean you really start to look at this sort of overreach. There’s an understanding here that there’s an industry, the real estate industry, is concerned about. There’s an understanding that this is a way to keep affordable housing units down. But at the end of the day, what is the state’s interest in whether a local city decides where and what kind of housing it’s going to build? We’re going to see a lot of that in this coming session in 2020. There’ll be a lot of, I think, I predict, efforts to repeal rent regulations and I think fights over what the state interest is in local zoning.

It’s only when you aggregate it and you look at the erosion of local democracy, undoing the ability of local governments to reflect the views and values of their own constituents, and you look at the damage that has done and the consequences that has had. That there is a reason to come together and actually object to preemption. And it goes back to the earlier point I made. We may not all agree on who should have a minimum wage increase. But we all can agree the decision should be with the localities. And from locality to locality, the answer may be different. And that is allowed in a democracy. That is a reflection of different histories, cultures, industries, economies. That is exactly what we are trying to protect here. And so this cross-issue coalition, really … I mean and Florida is a great example.

They were successful in actually killing some bills and weakening some of the bills and helping folks understand. I think that they actually put some law makers back on their heels and saying, “What is this set of unusual bedfellows who’ve come together?” And starting to recognize there is an overriding concern that really submerges and sublimates individual agendas. When localities can’t pass laws, agendas be damned. You can’t move. You can’t move at the state, you can’t move at the locality. You have a common purpose here.

The other thing we’re starting to see are there sort of other pieces of good news. We’re starting to see champions emerge. I mean we talked about Wisconsin governor Evers earlier. We are actually starting to see mayors, like mayor Peduto in Pittsburgh, really step up and say, “Enough.” Guns is a really good example. I mean Peduto is animated by his inability after the synagogue shooting to increase gun safety in his own community.

You look at the lawmakers in Florida who have gone to court to say, 30 localities have gone to court to say, “Wait, after the Parkland shooting, there is nothing we can do to make our schools safer because we are preempted. Not only we preempted, we will be punished if we try to enact gun safety laws in Florida.” And I am talking about personal punishment, civil suits, criminal suits, fines, jail time. I mean it is particularly punitive in Florida. And that also feeds into the fact that there have been court cases, those 30 mayors who challenged the punitive aspects of the gun preemptions law in Florida won their case earlier this year. But now the state is appealing. That is a positive trend. We have not seen that. That punitive aspect of the gun preemption law has been in place since 2011.

We are also seeing additional court cases that are starting to recognize the state is overreaching. We’ve seen positive cases on pesticides and the assertion of local control in Maryland, where Montgomery County went and required more about which pesticides can be used and more safety structures that had to be in place than the state allowed. And they’ve just won in court. Same thing with the ability of Pittsburgh to enact its own paid sick days laws. So we’re starting to see the courts turn around.

And then the other thing you talked about earlier, I mean and it’s something near and dear to our hearts, is we are partnering with the National League of Cities. We at the LSSC work with a panel of incredible local governance and legal experts to rewrite home rule. It has not been looked at since 1953 and we have been working for the last year on revising the principles, rewriting the provisions that actually make it clear where the lines are, what authority cities have. Because frankly, I mean some of this is interpretive, some of this is subjective. Some of this has been about a tug-of-war, session by session, issue by issue. And I think it’s exhausting and it’s also expensive and it’s also confusing. So really having a holistic approach to here, this is a model we could use across the country that really makes it clear where the limits are, what city rules and where the state does. And really looking at a very different, systematic approach to fixing this problem.

I will not have a gun in my house because I understand that the statistics are it will probably end much worse than it would be useful in any way that would be helpful for me. At the same time, if I lived where my in-laws live, which is more than 20 minutes from any place like a grocery store or any place that could potentially really offer help, I probably would have a gun in my house in that situation. And so I think we have to recognize that we need to have different rules for different places and be okay even if we don’t always agree with them.

You can also help us out with a gift that helps produce this very podcast and gets us great guests like Kim. Please help us out by rating this podcast and sharing it with your friends on iTunes or wherever you find your podcasts. This show is produced by Lisa Gonzalez and myself, Hibba Meraay. Our theme music is Funk Interlude by Dysfunctional. For the Institute for Local Self-Reliance, I am Hibba Meraay, and I hope you join us again in two weeks for the next episode of Building Local Power.