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In today’s episode of Building Local Power, host Christopher Mitchell speaks with Fordham Law School Professor Nestor Davidson and National League of Cities Research Director Christiana McFarland. Nestor and Christiana are among the authors of National League of Cities’ new report, Principles of Home Rule for the 21st Century. Home rule gives cities the authority to make policy decisions locally, without being preempted by state or federal governments. Christopher, Christiana, and Nestor talk about the importance of home rule and why local officials need “all the tools in the toolbox” in order to effectively confront challenges from the COVID-19 pandemic to climate change.
They also discuss:
- How local authority varies from state to state and the history of home rule in the U.S.
- The troubling trend of state preemption being used as a tool to penalize local officials.
- Why the diverse needs and values of different cities require diverse local solutions.
- The importance of a balanced relationship between federal, state, and local authority.
- How National League of Cities is working with their partners to build support for home rule.
“If cities don’t have clear authority to solve the problems they face, if they don’t have the authority to innovate… if you have to wait for the state to authorize, if you have to wait for whatever political process happens in some state capitol that may be hundreds of thousands of miles away, right? It’s going to be very, very hard to solve the problems you face as a city.”
Principles of Home Rule for the 21st Century, National League of Cities
The Growing Shadow of State Interference: Preemption in the 2019 State Legislative Sessions, Local Solutions Support Center
| Jess Del Fiacco: | Hello and welcome to the Building Local Power Podcast. I’m Jess Del Fiacco, the Communications Manager here at the Institute for Local Self-Reliance. For today’s episode, we’re talking about the work that National League of Cities is doing to advance home rule in communities across the country. Chris is here. Chris Mitchell is who works… Who are you? |
| Chris Mitchell: | Oh, I love it. Actually, that’s the best intro I think I could ever have. I’m Chris Mitchell who is the Director of the Community Broadband Networks Initiative here in St. Paul about a mile west of Jess Del Fiacco’s closet where she is recording. |
| Jess Del Fiacco: | It’s just only slightly cozier than my usual office really. |
| Chris Mitchell: | Right. |
| Jess Del Fiacco: | So Chris, first off, who are the guests on our show today? |
| Chris Mitchell: | I had a chance to speak with Christy McFarland, who is the Research Director for National League of Cities and Nestor Davidson, who’s a professor at Fordham University School of Law. Both of them have given a lot of thought. But it was a conversation I really wanted to have and I think this is so important talking about the role of local governments. But Jess, I think you might have noticed that we had some technical difficulties in doing this show. |
| Jess Del Fiacco: | Yeah. You’re good for at least the first half an hour, I think here. The last couple of questions folks might notice some bumps, but just stick with us through those. |
| Chris Mitchell: | Right. I surely should thank Christy and Nestor for being so forgiving and working with us. I’ve actually been pretty pleased with how Comcast has held up once I’ve been holed up in my home. Well, when we recorded this it wasn’t as good of a day. |
| Jess Del Fiacco: | Nestor and Christy talk about the report that they just produced, which is called the Principles of Home Rule for the Twenty-First Century. My first question is, Chris, what is home rule and why is it important to building local power? |
| Chris Mitchell: | The issue of home rule is something that we work with a lot in Community Broadband Networks because home rule has to do with what authority cities have to do things. Generally, cities have certain authority to do things like for instance, building a road, bonding for a road, and maintaining a road in the streets. These vary from state to state based on states constitutions and a number of historical issues and different interpretations of law. It gets very complicated, but as many people are familiar with, in my work, there are 19 states that limit local government authority to build networks. |
| Chris Mitchell: | In a world in which we had greater home rule, cities would not be limited in that way. This really gets down to what cities are allowed to do, where we are allowed to make decisions at the local level about things we care about. |
| Jess Del Fiacco: | Yeah. Great. Both with Broadband and beyond that right now, I think it’s really clear how we’re seeing some cities are facing limitations on how they can respond to the pandemic. Some of them have more ability to adapt and solve problems using whatever resources they can and others are being held back by certain things. |
| Chris Mitchell: | Right. Or even being targeted. This is something that we talk about in the discussion, which is how… This isn’t just about states saying, “Oh no, I don’t want you to do that.” It’s actually escalated in ways that are really scary for a proper balance of government to make sure that people are well-represented and that we are working as a nation, frankly, as we’re spread across such a large landmass with so many people that have different ideas about how we should make decisions. |
| Chris Mitchell: | I think having home rule is something that would really help. We talk about that a little bit. But one of the things that I felt like we should cover in the introduction here is to bring up… This paper has a lot of history on home rule. It’s relatively short history frankly, but I found it really interesting and there’s four principles that I want to make sure that we do cover to make sure that they’re reinforced later in the interview, I think. |
| Jess Del Fiacco: | The first principle is local authority, which we’ve talked about a little bit already, but do you want to give an overview of that? |
| Chris Mitchell: | Right. This is broadly the idea that cities should have the authority to enact the policies that they need to on a wide range of issues. |
| Jess Del Fiacco: | Then there’s local fiscal authority. |
| Chris Mitchell: | Which is to say that if local governments are going to have the authority to do those things, in many cases they’ll need the authority to borrow money or to otherwise spend money in order to enact those ends. |
| Jess Del Fiacco: | Then presumption against state preemption. |
| Chris Mitchell: | Right. Presumption against straight preemption. I love that, frankly. No. This is the idea that when a dispute comes to a court right now, I think courts tend to lean in the direction of believing that states both have the authority to overrule home rule. Even in situations in which the state isn’t totally clear that it’s overruling home rule, that the courts will often assume that the states are. This is a change that would direct the courts to assume that states are not invalidating home rule unless they’re very specific that they are intending to do so and attempting to do so. |
| Jess Del Fiacco: | Then the fourth principle that they have for home rule is local democratic self-governance. |
| Chris Mitchell: | This fits with the other principals and basically saying that local governments should have the full authority and to be able to manage their own democratic process, which I think it’s something that we’ll be talking about, which is where states are trying to punish local officials in ways that I think are inappropriate because they have policy disagreements. This is basically saying that local governments have to be able to carry out the decisions that they make and that they have the authority to fund and things like that. This all ends then. It culminates in actual language that can be used to amend constitutions to get the conversations started in terms of how we should basically encourage cities to have more authority and take more responsibility in solving the problems that we face. |
| Jess Del Fiacco: | Great. I think that’s super helpful for people to know. Going into this, is there anything else that we should note before we kick off the interview? |
| Chris Mitchell: | I think this is important. This is the beginning of a long discussion. This is not something that’s going to be resolved at the end of this year. This is probably an ongoing issue that we will encourage in different states for people to be considering, but people should be thinking about this sort of stuff. The decisions that we made 100 years ago, 200 years ago or 70 years ago, when home rule was most recently adopted, we don’t have to abide by the balance that our ancestors struck. We should be bold and strike the balance that we think is appropriate for today given the technology, the way that people are moving to cities and all kinds of other shifts in terms of how we live our lives in our closets. |
| Jess Del Fiacco: | Yes. Our lives have been changing a lot lately. Okay. Well, thank you, Chris. I think with that, let’s move over to the show. |
| Chris Mitchell: | Great. Thank you. |
| Chris Mitchell: | Welcome to another episode of the Building Local Power Podcast from the Institute for Local Self-Reliance. I’m Chris Mitchell and I run the Community Broadband Networks Initiative at the Institute for Local Self-Reliance. But today, we’re talking about something that’s both more broad and indefinitely related to Broadband and the work that I’ve been doing. It has to do with the powers of cities. I have two guests that have spent a lot of time thinking about this and have written a wonderful paper that I hope we’ll be seeing a lot more of, frankly, as these discussions move forward. |
| Chris Mitchell: | It’s a paper called the Principles of Home Rule for the Twenty-First Century and the authors are with me. That’s Nestor Davidson, who is a professor at Fordham University School of Law. Welcome to the show. |
| Nestor Davidson: | Thank you so much for having me. |
| Chris Mitchell: | We also have Christy McFarland who is the Research Director at the National League of Cities. Welcome to the show. |
| Christy McFarla…: | Great to be here. |
| Chris Mitchell: | Let me just start with you Nestor, just for a brief description. How did you get interested in the sort of authorities that local government has and the body of law around that? |
| Nestor Davidson: | I’ve always been fascinated with cities and I’ve been fortunate in my academic work to be able to write and teach about core elements of the state and local relationship. If you are like me, a scholar of local government, you can’t help but pay attention to how critical questions of local authority have become over the last decade and really an imbalance that has developed between states and local governments. It’s what most legal scholars are focused on today. I’m fortunate to have been able to work with the National League of Cities to bring some of that work into the real world. |
| Chris Mitchell: | Yes. It’s a wonderful opportunity to have Christy tell us a little bit more about that work. The paper certainly offers background that I was unaware of, including the crucial role that the National League of Cities has played even before it had its current name and previous incarnations. Christy, tell us a little bit about what National League of Cities does, but also I think your role within it and how you got to be interested in that. |
| Christy McFarla…: | From the National League of Cities’ standpoint, we come at local authority and home rule from a very practical standpoint. I think as Nestor was saying, we work with mayors, council members, city staff from cities across the country, all different states. One thing that has been a defining characteristic of our work is to be very cognizant of the different contexts that cities are operating in. One of those defining contexts is the relationship between cities and their states and the types of authority and power they have to implement particular policies. |
| Christy McFarla…: | For example, if we’re working with a group of city officials and they’re looking to the National League of Cities to better understand what best practices look like in a whole host of arenas, whether it’s economic development or public health, we try to not only provide those policies and best practices to them, but also try and understand whether or not those are actually applicable to the states that they’re from. We heard often that we would provide a best practice but get feedback that, “Hey, we can’t do that in our state. We don’t have cities, don’t have the authority to implement that policy.” That’s when it became really, really important to us to ensure that we were understanding the local context, the city, state relationships so that we can be a strong advocate for cities and provide them with information that’s going to help them do their jobs better and be useful to them as a city leader. |
| Chris Mitchell: | Christy, how did you find yourself drawn into this type of work? |
| Christy McFarla…: | I think like Nestor, I’ve been fascinated with the city state relationship. It does define a lot of the authority that cities have when they’re pursuing different policies. I’ve been in the realm of urban policy for my entire career and although there may be one best practice, it doesn’t necessarily apply to all places. So really being able to better understand the frameworks that are defining how cities have the authority that they have and what we can do potentially as an organization at the national level and specifically organizations at the state level, how they can improve those environments for cities. |
| Chris Mitchell: | Now, Nestor, I like the way that you framed it in terms of the balance between the cities and the states. I’m curious if you can just give us a quick thumbnail sketch for people who are not familiar with how cities derive their authority. What’s a very brief description of how that all works? |
| Nestor Davidson: | Well, I think you made a mistake in inviting a law professor to answer a question like that. I’ll try and keep it in under an hour. The basic framework, I think that’s important to understand. Really this is a question of state constitutional law. When I teach state and local government, I always tell my students, “This is a class on constitutional law.” Every state allocates authority between the state level and the local level in different ways. |
| Nestor Davidson: | Historically, going back to the early part of American history to the 19th century, early 19th century, the default assumption was that states possessed all of the legal authority that could reside in a government. That created some distinct problems, especially in the late part of the 19th century with rapid urbanization in the United States where cities had to govern themselves and didn’t want to have to go to the state legislature week in and week out to get special laws or to manage their affairs. |
| Nestor Davidson: | There was a good government movement after the civil war that gave rise to this idea of home rule. Home rule means that cities and other local governments derive their authority directly from the state constitution as opposed to from legislation, from the grace of a state legislature saying, “You may operate in this area.” With home rules senses cities have to have the tools to solve their own problems. We recognize as a state that cities can act. |
| Nestor Davidson: | Now of course, as you mentioned, there has to be a balance. There are state interests, there are local interests. Home rule also reflects a careful relationship, a structuring of a relationship between states and local governments. When that works and it works well, you can have partnership, you can have a coordination between areas of policy where you need statewide uniformity and the many areas of policy. Christy works on all of these where local targeted distinctive policies make much more sense. |
| Nestor Davidson: | Home rule in short is a shorthand for the authority that local governments have, particularly the authority they have that doesn’t need to derive from legislative delegation from the state. |
| Chris Mitchell: | Now, Christy, I’m curious if you can tell us what’s the situation out there for cities in terms of home rule? Do we broadly see that cities have this authority that the previous movements we’ve seen for home rule have been… To give you a softball, have they all been wildly successful in cities have brought home rule powers? |
| Christy McFarla…: | That’s not the case. Cities do not broadly have home rule authority. It varies extensively from state to state. Then even within states, often what we see is that they’re sort of a spectrum of authorities that cities have. It’s certainly not black and white home rule or not home rule. Oftentimes, larger cities in the state do have more authority to govern themselves than other smaller communities. But it’s certainly not equal across the country. |
| Chris Mitchell: | Lately, it feels like the imbalance is further imbalancing, which is to say the local solution support center has certainly documented a rapid increase in certain types of preemption of states interfering with local affairs. Is that been your perspective as well? |
| Christy McFarla…: | Yeah. We’ve seen certainly an increase of what we call preemption, where the state is infringing on what traditionally had been areas where the local government would be exerting power, where the state is actually coming in and in some cases unnecessarily punishing or burdening local officials in some cases like we’ve seen with the Florida Gun Punitive Preemption. There have been a lot of examples where the states were coming in, where preemption has increased, and where local authority has decreased as a result. |
| Christy McFarla…: | Again, there are a lot of examples throughout the country, whether it’s Milwaukee, Denton, Texas, broad preemptions across Arizona and Texas, Florida as I mentioned. It’s certainly become an increasing challenge for communities. |
| Chris Mitchell: | Just to expand quickly on that, one of the things about that isn’t just saying cities cannot do this thing. It’s saying if cities do dues, anything related to this, we’re going to find ways of penalizing the city council, the mayor, as individuals well beyond just some sort of cutoff of funds to the city. |
| Nestor Davidson: | I do think this is one of the areas that is new and troubling. We’ve always had states ordering certain aspects of local authority, but I don’t think we’ve really had states trying to punish individual local officials, city council members, mayors for just doing their job. It’s understandable that you’re going to have disagreements between different levels of government, but to have a kind of punitive tannage to those disagreements is really unfortunate. |
| Chris Mitchell: | Christy, did you want to add anything to that? |
| Christy McFarla…: | Yeah. Just a specific example, I was talking before about the Florida Gun Punitive Preemption Law. We had seen in Florida when localities were in specific violation of the state’s gun preemption law, the elected officials themselves were subject to fines and potential removal from office. It’s certainly happening across the country. As Nestor is saying, it’s sort of upping the ante about what preemption means and what it looks like in today’s context. |
| Chris Mitchell: | Well, I think we’ve really set the stage then for a quick understanding of home rule. It hasn’t ever been something we’ve really seen. Different states have implemented it in different ways to different extents, but generally, we’ve seen cities are pretty limited by states, I think I would say as a non-expert. But one of the things I really wanted to make sure that we talked about is why it is important to have home rule. Your paper, the Principles of Home Rule for the Twenty-First Century, I think it makes a very strong case that cities are more important now than ever. They are this locus of so much economic activity. |
| Chris Mitchell: | We see a clear majority of people moving to urban areas. But I’m curious and I’ll start with you, Nestor. I’m curious, why does that necessarily mean that cities should then have more political authority? |
| Nestor Davidson: | I think it’s as simple as understanding that both the economy policy innovation and also some of the greatest challenges that we face as a country are being confronted by cities and other local governments at a time when questions like climate or frankly public health. We’re all experiencing that in real time right now were thought of as statewide issues only or thought of as national issues or even international issues. |
| Nestor Davidson: | It was less imperative to have clear authority to empower cities to be able to act. But cities are on the frontlines with almost every single policy issue right now and obviously you work on technology and Broadband and we can think of a number of other areas in emerging technology where cities are the place where technology is being experienced in real time, whether that’s autonomous vehicles or it’s the sharing economy, and the platforms that facilitate that, but it’s civil rights, it’s the environment, it’s public health. |
| Nestor Davidson: | It’s almost every major area of policy. If cities don’t have clear authority to solve the problems they face, if they don’t have the authority to innovate, to try those best practices that Christy talked about, then if you have to wait for the state to authorize, if you have to wait for whatever political process happens in some state capitol that may be hundreds of thousands of miles away, right? It’s going to be very, very hard to solve the problems you face as a city. I think that’s why authority matters. Obviously, it’s not everything. Obviously, capacity matters. Obviously, getting the policies right matter, but none of that can play out unless you cross that initial threshold and have the authority to act. |
| Chris Mitchell: | Hey, this seems like a good time to interject into this discussion because I think I might be having technical difficulty right now at this second, so while we’re fixing that and fixing up all the tape and doing the splicing stuff, I just want to remind you that this is also where we would insert an ad if we were a different, more shady podcasts, but we’re not. We’re the Institute for Local Self-Reliance and we are really focused on local businesses, businesses that don’t necessarily have an incentive to advertise on a national podcast. |
| Chris Mitchell: | We really encourage you to go out, support your local businesses as best you can in these trying times, but also to help us out, make sure we can still promote this podcast. We can do the work we’re doing to advocate for local businesses particularly as, and this is important because we just released a statement on this. |
| Chris Mitchell: | This is a time in which large businesses may be acting against local businesses trying to buy them up, consolidate and we really need local businesses to be strong to pull us out of this as we emerge from the pandemic. I hope you’ll stroll on over to ilsr.org/donate, help us out and become a part of our family and we will be greatly thankful for your support. Thank you so much. Now I’m going to get back because I think we have the show work back out. |
| Chris Mitchell: | Christy, one of the things that I’ve reflected on every time I’ve attended one of your national events, which I highly recommend for any cities that are involved. I think sometimes people think National League of Cities, they think Kansas city, Los Angeles, big cities. You have all kinds of cities coming to your events to learn from each other. I’m curious, if you think across that range, I think local solutions generally are the best. The three of us probably agree with that. We see people looking to their local governments for solutions. But I’m curious about any evidence in terms of local solutions being better that it makes sense to entrust local governments to be solving these problems as the frontline. |
| Christy McFarla…: | Yeah. I think that question really underscores some of the points that Nestor just raised specifically thinking about the types of problems that cities are wrestling with and the need for them to do so in a way that is going to allow them to innovate and to do things in a timely way. We’re seeing that there also tends to be on some critical policy areas of policy vacuum at the state level and the federal level, meaning that there is no policy solutions being offered at other levels of government. |
| Christy McFarla…: | Residents and constituents that are obviously at the local level are demanding solutions to these big problems around climate change for example, public health issues and local officials respond. That’s what they do. They’re people of action. Local leaders being able to have the authority to respond, particularly in instances where there is a policy vacuum is critically important. |
| Christy McFarla…: | You also had talked about sort of the diversity of types of communities that are part of the National League of Cities. I really appreciate you mentioning that because it’s very true. We have cities that are very small and more rural all the way up to the very largest cities in the country. What that means is that the diversity of cities means that there’s also a huge diversity of needs and values that are represented by the constituents in those communities. |
| Christy McFarla…: | Having the authority at the local level to respond to those differences and what those values and needs might be is of critical importance to ensuring that everyone is able to live in a community where they feel safe and secure and have their values represented. |
| Chris Mitchell: | I think there’s a lot to be said about local knowledge too, and you don’t have to answer this in relation to my example of Broadband, but I work in Broadband and I’ve been just frustrated lately in recognizing that. For instance, across North Carolina, there’s a lot of smaller towns and even some larger towns, cities that have very limited Broadband access and the state and federal government don’t actually know which ones those are because we don’t have good records. |
| Chris Mitchell: | In the case of North Carolina, local governments are really prevented from taking action on this. It’s just as someone who thinks a lot about information, where is their information? How do we know what we know? It’s frustrating when wherever we’re limiting the entity that has the most information from being able to respond on the matter. |
| Christy McFarla…: | I think that’s exactly right. Obviously, most often that is going to be the local level of government that are interacting directly with the key challenge. That’s why I think we’re seeing a lot of innovations at the local level as well as Nestor was referring to because there are these challenges on the ground and they need to be dealt with. It becomes very challenging when tools and toolbox are taken from cities in order to deal with challenges like Broadband for example, that are of critical, critical infrastructure nature. |
| Christy McFarla…: | I think given the pandemic that we’re facing right now, people are working from home understanding that Broadband is not just a nice to have but it’s certainly critical infrastructure. Being able to entrust city leaders to help make those decisions is really important. I think getting back to the relationship with cities and states, it’s not that cities need sort of blank check or authority over these specific policy areas is that there needs to be a relationship between cities and states. |
| Christy McFarla…: | In some instances and some policy areas, it will be the states that are establishing the guidelines and are establishing sort of the baseline policies. Cities need to be able to adapt and understand what the needs are of their community and how to build on those. I think Broadband is probably a really good example of that where having state enabling legislation and having other types of authority at the state level to ensure that there is broader Broadband access throughout the state obviously is critically, critically important in order to equalize throughout the state, particularly when it comes to Broadband and working with locals to understand where there may be challenges obviously needs to be a part of that process. |
| Chris Mitchell: | Nestor, I’d like to get your take on that as well. One of the things that I think we want to make sure that we’re saying is not that we think we should just strip states of authority, but that we do need to have a balance. But let’s speak for a second about where the states should be preeminent. In what areas should states take the charge and how should they relinquish that at different times? |
| Nestor Davidson: | I guess I think about it in a slightly different framework. I don’t think it’s possible to pick a policy area and say, “Well, this is clearly state and this is clearly local and this is clearly federal.” I’ve spent a chunk of my career in the federal government. I used to work for the Department of Housing and Urban Development. I think it’s more important to think about the strengths that each level of government brings to any area of policy. If you think about an issue like housing, you have much, much more detailed, fine grain knowledge about neighborhoods and block to block differences and conditions at the local level. |
| Nestor Davidson: | But there are some issues like housing finance that we need a national system for and you need to be able to aggregate and you need to be able to create the structures. When housing policy works best, you have an alignment between local knowledge, local capacity. The states have a role to play. The federal government has a role to play. I think it comes back to home rule. |
| Chris Mitchell: | What do we see when the partnership between different levels of government is working well? |
| Nestor Davidson: | I think the current crisis we’re facing with coronavirus and COVID-19 are great and at times troubling landscape of when cities and states work well together the outcomes are great or at least as good as they can be, even in the most challenging circumstances when you have coordination, when you can match the resources you have at the state level and even the federal level with the kind of knowledge you have and the ability to act quickly that you have at the local level. I think that’s been hardening where we’ve seen it in many states, but in some states there really isn’t that kind of cooperation between governors and mayors, between the state level and the local level. |
| Nestor Davidson: | When that happens, you have mayors trying to protect the health of their people. Mayors issuing stay at home orders or trying to define what are or are not essential businesses, knowing what their communities need. Then you have governors stepping in and overriding that as this happened in a couple of states. That’s really the most disturbing one at a time of crisis of the larger dynamic we see around home rule in the country as a whole. |
| Chris Mitchell: | I do think that really brings it into vivid view when there’s actually that direct health impact. But I want to come back to Christy and I want to sort of ask the flip side, which is housing’s an interesting example. I think those who are dubious about local control perhaps if only because they are currently distrusting of the fact that cities tend to be more democratic and little more left leaning, they may point to say issues in which the cities haven’t done a great job or let’s say more broadly problems that exist within cities that we haven’t been able to get a handle on, for instance, homelessness or other problems. If I was to say to you, we don’t know that local governments can actually solve these problems, why should we give them broader authority to deal with them? How would you respond? |
| Christy McFarla…: | I would respond to questions around sort of the sticky challenges that cities are facing as issues that really require an all hands on deck approach. When we remove authority from cities to at least try innovative solutions, that’s really when a lot of the challenges begin to emerge. As we were talking earlier, home rule is not about having solitary authority at the local level. It’s about the full relationship and all of the levels of government playing a role in solving a problem. |
| Christy McFarla…: | Homelessness is not only a city government problem, homelessness is a broader nationwide challenge that really needs to be dealt with at all levels of government. |
| Chris Mitchell: | I’m curious. I mean, this is related to the previous question and Christy, I’d like to ask you first and then also ask Nestor the same issue because I think this is just so important. I have no doubt that you’re very familiar with the deep history in which all levels of government frankly have enacted policies that benefited white skin people historically much more than others and really specifically targeted people of color. When are the proper times in which states should be stepping in to make sure that local governments aren’t perhaps targeting minorities or majorities frankly, but where rights are involved? |
| Christy McFarla…: | More often than not, the overriding role for states, particularly when it comes to issues around whether it’s safety, health and especially issues around race and equity, is establishing those minimum basic rights of every person. That’s obviously a federal role and that’s a state’s role to help enforce that. When cities are acting outside of those bounds and establishing policies that are clearly resulting in inequitable outcomes particularly for people of color, that becomes an issue that needs to be dealt with immediately and significantly at the state and federal level. |
| Nestor Davidson: | I would just build on what Christy was saying to make two additional points. The first is that home rule should not fall on any one instance where you might be able to find a policy that historically local governments haven’t done as well as they could. As somebody who spent a big part of my career working in affordable housing and fair housing, that I think is a very serious concern. But the answer there is that we need to solve the problem of segregation. We need to solve the problem of exclusion in a targeted way, in an intentional way. And not to say that if you have some local governments that use the power they have and that we think is troubling that that’s an argument to take authority away from all local governments across the country. |
| Nestor Davidson: | I think you see that argument playing out sometimes, that sort of simple leap from saying, “Well, here’s an example of some area where we think cities or suburbs or small towns have fallen short. Therefore, we should disempower local government.” That leads me to my second point, which is that when you think about questions of race, and equity, and integration, cities are innovating. Cities are presenting incredibly diverse level of governance and across the country cities, whether it’s in housing or an environmental justice, are really at the forefront of finding new ways to solve lingering longterm structural problems. |
| Nestor Davidson: | Just at the moment when cities are really focused on trying to get this right, it would be unfortunate to look at some of the history of local governments being exclusionary and say, “Look, that’s a reason why we should take power away from all local governments.” |
| Chris Mitchell: | That’s terrific. This is for people who are listening. I’m having a slight challenge with my connection, but I want to make sure that having talked about a lot of the practicalities that we talk about what is next and in what role the principles of home rule for the 21st century plays in that. Nestor, let me start with you. What should we do? We read this, we agree with it, what’s next? |
| Nestor Davidson: | Let me first just very quickly describe what the principles stand for. There are four areas that the principles try to elevate and highlight in thinking about reforming home rule. First is this basic question of authority. Some cities have it, some cities don’t. The first principle is that we should be very clear that cities and other local governments have the power they need to solve the problems they face. |
| Nestor Davidson: | The second principle really focuses on fiscal capacity. You can have all the legal authority in the world, but if you don’t have the resources to be able to meet the needs of your resident, it’s not going to do you much good. States have undermined the ability of cities to raise revenue to make budget choices really over the space of two generations. The second principle is to be clear that cities have the authority to make the fiscal choices that they need to be able to make. |
| Nestor Davidson: | The third is coming up with a new approach to this balance between states and local governments. It’s not, again, that states should be disempowered. It’s not that they can’t act on important state interest, but they should have to say what those interests are and they should end those as important state interest. It can’t simply be that they disagree with local governments and they therefore get to win, which is what happens in far too many states today. |
| Nestor Davidson: | Then the final principle really goes to this question of punitive preemption. It goes to the question of states really interfering with what I think of as the core of the core of local democracy. People who are elected to represent their communities who need to be able to do their job. The fourth principal really tries to provide the greatest level of protection for that mechanism, for that local democratic process. No local officials should face removal, should face fines. |
| Nestor Davidson: | In some states, they even face potential criminal liability in preemption conflicts. That simply should not be a part of any state and local relationship. We hope with the great work that the National League of Cities has done to build out relationships with states where cities, federal local governments are eager for reform that this model… As I said, we’ve also crafted a model constitutional home rule article that can be the foundation for actual law reform. |
| Nestor Davidson: | Right now, of course, we’re all focused on the immediate challenges of the crisis responding to coronavirus and COVID-19. As we come out of this crisis, it’s going to be all the more important to engage with cities and other local governments in a bottom up way who are interested in reforming home rule. We hope that this principle’s report on the constitutional model to be a spur to that state level law reform. It’s exciting that the National League of Cities has gotten back into this kind of law reform effort. |
| Nestor Davidson: | As you mentioned, historically, they’ve really taken the lead for the better part of the century in focusing on these issues and in actually changing legal systems across the country. I think the time is right to do it again. |
| Chris Mitchell: | Christy, I’d love to get a sense of how we’re going to do that. For instance, I would imagine that National League of Cities would appreciate not being the only one talking about this. |
| Christy McFarla…: | Absolutely. We rely on a whole host of partners to be working with us on this. Nestor had talked about reform and constitutional legal doctrine, and model constitutional reforms, and articles. Getting to that would be a gold standard I think for home rule and for the home rule movement that we’re currently seeing right now. In the interim, there are a lot of steps before we get there and seeing how cities are responding within the current crisis, seeing the balance of the relationship between positive or the relationship between cities and states, I think it’s a step in the right direction. |
| Christy McFarla…: | We’ve also seen a return of some power to cities over the course of the past year where we’re seeing some trends towards counter preemption where cities really are stepping up and states are returning authority. Those are all steps in the right direction towards stronger home rule. For example, we’re seeing in Colorado there was a recent repeal in the minimum wage preemption. |
| Christy McFarla…: | We saw Arkansas partially repealing municipal Broadband preemption. These are all ways that we’re seeing cities regain some of the authority that was taken away from them. That again steps towards stronger home rule, at least when we’re talking about the principles in home rule. Again, moving towards that actual constitutional reform is going to be the longer haul. We’re seeing many stakeholders come together in this fight towards stronger local authority. We saw for example in coalitions like local Maryland, there were many single issue advocacy organizations who were concerned with one specific policy and they all came together because they saw that having issues around preemption was a challenge for their particular policy area. |
| Christy McFarla…: | Coming together under an umbrella coalition to help stop preemption, enhance local authority was going to be the best outcome for their particular policy area. We’re seeing cities and states across the country join broader campaigns and coalition in order to move again away from preemption and also to advocate for a stronger proactive vision of little authority, which is overwhelmed. |
| Chris Mitchell: | I want to ask a final question. One of the things that I feel like we need to accomplish in order to appreciate the value of home rule is in some sense, we can retain our polarization. We have strong disagreements in different parts of the country with our neighbors, with people in different parts of the country often in terms of how we should be implementing rules and whether it’s minimum wage or whether you think maybe that sick time is not something that should be required, something I have strong disagreements on. But it does seem like one of the things that we need to do is to basically allow people to make different rules in different places. |
| Chris Mitchell: | I feel like no matter which side you’re on, there are some issues in which you could be okay with that and some issues in which you’re not. I’m just curious, is that really one of the things to take away about home rule is that we’re a nation that has different kinds of people and we need to have some different rules in different places? |
| Nestor Davidson: | I do think that’s right. Look, there are areas like civil rights where we need national baselines, but there are so many areas of policy where our grand tradition of live and let live recognizing that we are a really diverse country and what works in a small town may not work in a big city and what works in a big city may not work in a small town and that we should have policies that embrace the true diversity of our country on every level and in every way. I think that’s what local governments do best. |
| Christy McFarla…: | I’ll just add diversity from city to city, from town to town is reflective obviously of the people and the values of the people who live there. There are also just basic economic realities about what makes up a city, how expensive it is to live there, how expensive it is to do business, what it means to operate in a particular place and for those reasons too, not just the values that are reflected, but also sort of the economic realities of making those places successful is going to be different from place to place. I think minimum wage and obviously income support and so forth, that’s a critical area for exploration, particularly when it comes to home rule. |
| Chris Mitchell: | Thank you, Nestor Davidson, Professor Fordham University School of Law and also, Christine McFarland, the Research Director at the National League of Cities. I really appreciate your time and your patience for those who haven’t had to live through these various audio glitches. |
| Christy McFarla…: | Thank you. |
| Nestor Davidson: | Thank you for having us. |
| Jess Del Fiacco: | Thank you for tuning in to this episode of the Building Local Power Podcast from the Institute for Local Self-Reliance. You can find links to what we discussed today by going to ilsr.org and clicking on the show page for this episode. That’s ilsr.org. While you’re there, you can sign up for one of our many newsletters and connect with us on social media. |
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| Jess Del Fiacco: | The show is produced by Zach Freed, Sushmita Shrestha and me, Jess Del Fiacco. Our theme music is Funk Interlude by Dysfunction_AL. For the Institute for Local Self-Reliance, I’m Jess Del Fiacco and I hope you join us again in two weeks for the next episode of Building Local Power. |
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