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How Preemption Can Erode Democracy And What To Do About It
Host Chris Mitchell is joined by Kim Haddow, Director of the Local Solutions Support Center, for a robust conversation on preemption and Kim’s efforts to get power back into the hands of local decision makers.
Kim Haddow, Local Solutions Support Center
They also discuss:
If you look at preemption issue by issue, it’s death by a thousand cuts. It’s only when you aggregate it and look at the erosion of local democracy, undoing the ability of local government to reflect the views and values of their own constituents, that there’s a reason to come together and object preemption.
Related Resources
Transcript
Chris Mitchell:
Hey, Hibba, the Institute for Local Self-Reliance’s communications manager. Are you back from your short vacation and ready for some Building Local Power?
Hibba Meraay:
Hey Chris, I am and I’m so ready for another episode of Building Local Power.
Chris Mitchell:
Nothing like hitting the desk and getting right back to work. I’m excited about this interview. I’ve been wanting to do it for a while.
Hibba Meraay:
So today you talk about a really interesting topic and that is preemption. So I think the first important thing to say to our listeners is what is preemption and why is it important?
Chris Mitchell:
Hey listeners, tell us what preemption is. Sorry. I think this is really important. Preemption is basically where the states tell the cities … or where a higher unit of government tells a lower level of government that it cannot do certain things. We’re going to talk about a report from the Local Solutions Support Center in which they talk all about this. They define it really well but just to give people a very brief sense leading into it, I wanted to note, there’s 25 states that preempt local minimum wage laws in which a locality would want to set a higher minimum wage than the lowest one for the state or the federal government. 23 states ban local paid sick days, 44 states ban local regulation of ride sharing networks. We talk frequently about the 20 states that ban, or have barriers to, community networks.
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.
Hibba Meraay:
Right. Like you said, the issue areas are really broad and a lot of them are hot topics that people are paying a lot of attention to, like minimum wage law is something that you guys touch on as well. I think my other question for you, Chris, is why are we specifically at the Institute for Local Self-Reliance talking about this? To me the answer is that this is really an issue of power. We’re talking about decentralizing power and we’re essentially arguing that decision making should be made by the people who are most affected by it.
Chris Mitchell:
Absolutely. Yeah, I don’t know if I could even add anything to that because I think you’ve covered it very well. We think decisions should be made locally. We think people should have power over their own lives and if they are not allowed to legislate on important things, or even on a plastic bag law, it doesn’t seem like it should be a major political fight, that if a city wants to either have a fee on a plastic bag or to try to discourage them, it seems to me that that should be something that the city should be able to do. So that’s what we’re going to be talking about.
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.
Hibba Meraay:
Great. So now let’s tune in to the interview with Chris and Kim Haddow from the Local Solutions Support Center.
Chris Mitchell:
All right, so here I am now talking with Kim Haddow, the director of the Local Solutions Support Center, which is located in a city that’s spelled New Orleans, but I believe it’s pronounced New Orleans.
Kim Haddow:
New Orleans, that’s right.
Chris Mitchell:
Welcome to Building Local Power, Kim, something that you spend a whole heck of a lot of time doing at the LLS, or excuse me, the LSSC and I’ll try to avoid baiting you with any sort of Saints, Vikings, NFL references or anything like that since we’re supposed to have a rivalry.
Kim Haddow:
Let’s not, let’s not,
Chris Mitchell:
We’re going to talk about preemption and you have released … Well, the LSSC has released and you were one of the principal authors, The Growing Shadow Of State Interference Preemption in the 2019 state legislative sessions, which is a very easy, accessible read to quickly get up to speed on what preemption is, the direction it’s going, why we should be concerned, why there’s hope and what we can do about it. But we’ll talk about that for the rest of our conversation but let me start by just asking you what is the Local Solutions Support Center?
Kim Haddow:
Okay, so we have been around basically formally for two years, and this is a national hub. Our goal is to connect people who are concerned about the increasing abuse of state preemption to limit local lawmaking. So there are folks who are working in different issue silos, in different states, attacking this differently and who frankly don’t know that each other exist. So part of our job is to make those connections.
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.
Chris Mitchell:
We should note that that this report that I referenced, which you should check out online, we’ll have a link to it in the show notes, was also written by the State Innovation Exchange. So we want to give them a credit too.
Kim Haddow:
Right, absolutely.
Chris Mitchell:
So I think it’s worth noting something. One of the first things that I learned when I came to the Institute for Local Self-Reliance 12 years ago was this idea of preemption and the idea that we should have floors, not ceilings. It strikes me that at least in Minnesota we like both but what are we actually talking about when we’re talking about floors, not ceilings?
Kim Haddow:
So, I think that it’s important to remember that preemption has been around as a legal tool for a very long time. Frankly it’s been used by both parties and it’s been used for good. I mean, what we’re seeing now is something very different, which we can talk about in detail in a minute but what what traditionally has happened is, is that, sometimes the states and cities pass laws that are in conflict and preemption is a way to sort of neaten up and make sure that there is no conflicts. Historically, that’s one of the ways it’s been used. But most often it’s been used because the state has set minimum standards, or what we call a floor that then the localities are able to build on top of. They can customize to local needs and constituents, they can strengthen what’s required by the state without having to go … this is their authority and legally their ability to build on what the state has set as a minimum and to go beyond and to enhance what the state has done.
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.
Chris Mitchell:
Right, that punishment seems to be something that’s also new and I think we should get into that. One of the things that I want to note to begin with though is that the law on this is, I would say unfortunately, pretty clear. So when we’re talking about this, you and I aren’t debating whether or not states have the right to do this under the system we have in the United States, states have brought authority because cities are considered subdivisions of the state and so the state can do whatever it wants. We’re talking about the wisdom and what happens as a result of this and I think that’s worth being clear about with listeners as we get started.
Kim Haddow:
Well, actually let me push back on that because I frankly think there are two things going on here. One of them is what has historically been the custom. So for very long time, states and cities worked in partnership, there was a collaborative … and there was certainly an allowance for local tailoring of laws as we just talked about. The state would establish a floor and then the localities could go customize it or make it something that applied uniquely to themselves and reflected the values and customs and culture of their own unique communities. That has been the custom for a very long time. That is what we’re seeing this break in norms as we’re seeing a break in democratic norms, you know, all over the place in the last decade, but particularly since 2016.
Chris Mitchell:
Right, it’s a rough decade to be a norm, I think
Kim Haddow:
Very funny but the other thing is, that frankly there are more powers that cities have. I mean, in some places charter cities have actually very proscribed powers in their constitution and what we’ve been seeing is an overreach, or an overstepping by states into that area. We see case law that comes down on both sides. So cities have powers and the states in some instances are actually overstepping the constraints on where the limits are on their power. So cities had rights.
Chris Mitchell:
Right, I agree with that. I think if anything, I would like to see more rights, more home rule authority and that sort of a thing. So I wouldn’t change anything that you say, you’re right in that I painted too stark of a picture. Nonetheless, I think cities are somewhat at a disadvantage in this situation. Now this is why we see quotes, one that you highlighted from Victor L. Crawford, former Tobacco Institute lobbyist who says, “We could never win at the local level.” The tobacco companies, he’s saying could never win at the local level. Then he says, “The first priority has always been to preempt the field.”
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.
Kim Haddow:
Correct, and I think that works and in a very pragmatic way and also in a very political way. So in a pragmatic way, I mean, think about it, the National League of Cities recognizes 19,000 cities, towns, townships, local divisions of jurisdiction. So, at the end of the day, the tobacco company’s not going to go city by city and town by town to fight for what they want. There was an efficiency in working only in 50 state capitals. So that’s part of what’s driving this but the other thing is frankly, there is a lot of activism at the local level. Communities are very well organized in many, many places to fight back in a way that states aren’t. So I think that what … there is a real political advantage, not even talking about the fact that there is obviously lobbying that goes on and campaign contributions that go on but part of what happens is is just the way that the organizational culture work is it’s much harder for these industries to win at the local level than at the state level.
Chris Mitchell:
Now, I want to make an argument that goes against pretty much everything we stand for at the Institute for Local Self-Reliance and that would be an argument that I would make just for the purpose of this conversation that, well let’s say that you have a big corporation that wants to do business in a state and it doesn’t want to have to deal with all of those local laws. Why is it a problem? Isn’t it a problem to have a patchwork in a modern economy where we have such big companies that are trying to do business everywhere?
Kim Haddow:
Well what you call a patchwork, I call localism. The job of local government is to represent what the unique views and values and culture of its own community are. So you live in a state that is … I mean, look at the difference in cities in one state. I mean, look at the difference between El Paso and Galveston, just in Texas for example. I mean, major differences both in history, in culture, in population, in industry. Those differences, those variations need to be, and have previously have been allowed to be reflected in laws. Why should one size fit all? In many instances it doesn’t and it is actually a detriment to try to force rural communities to do the same things that work in urban communities and vice versa. I think the gun laws are a very interesting example of how this is … within States.
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.
Chris Mitchell:
Yeah. One of the things that I think about, and this comes back to really my beliefs, my true beliefs I should say, is that if I look at Missouri and I thought about Missouri because they’re having a fight over minimum wage in Kansas City and I felt like the conservative lawmakers that wanted to preempt, wanted to have it both ways. Now, if I just stepped back and I think to myself, should the minimum wage be the same in Kansas City as in a town of a thousand people in a farming region of Missouri? Obviously the answer is no. There’s radically different costs of living. There’s different opportunities.
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.
Kim Haddow:
There is, frankly, a lot of animosity in many states between the largest city and the legislature, or the rural and urban populations. But I would say, you’ve actually put your finger on it, because for us, we’re looking at who decides. I mean that’s the core question, right? It’s not really whether you’re for or against raising the minimum wage. We can debate the merits of that separately, but Kansas City should be able to decide for itself just as Jefferson City or Poplin or any other place should be able to decide for itself, right? What works, what doesn’t work, what’s onerous, what’s affordable. Those are things that people within their own community can gauge.
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.
Chris Mitchell:
Well, and there’s one other thing that you raised, and I think it’s hard to disentangle, but that doesn’t mean that we should run away from it. And that’s, there’s an issue of race. You know that legislatures tend to be more white than the states that they’re representing in most cases. And a lot of the cities that they’re preempting, particularly in Alabama where I believe you notice this, they tend to be filled with people of color, in particular African Americans. And so there’s a real dynamic there as well.
Kim Haddow:
Oh, an incredible dynamic. And I think that if you just look at where the preponderance of preemption has occurred around minimum wage, paid sick days, predictive scheduling, ban the box, these are all policies that women need, people of color need, low wage workers need, those folks disproportionately are affected by preemption. And clearly, I mean we’re living in a time when still over 83% of state lawmakers are white, over somewhere around 76% of them, I think is the latest count, are male. And so we’re still living with this white male control over other populations. And to think that that is not animating some of what we’re seeing would be naive.
Chris Mitchell:
Now let’s talk a little bit about the direction. You note that preemption has grown every year since 2010. What have you been seeing within the past 10 years more generally?
Kim Haddow:
Basically if you look at 2010, really a couple of things sort of converged. One of them was the Citizens United Supreme Court decision. And people tend to think about this playing out, how it plays out in federal races and congressional races. But truly had a deep impact on what happened in states. Because the Supreme Court decision basically opened the portal to corporate giving, undisclosed corporate giving. And what you saw was that also affected giving laws in at least 24 States according to the Nation Council of State Legislatures. They had to go in and change their laws to be in compliance with the Supreme Court. So what opened the door to corporate giving in federal races also opened the door in terms of contributions to state campaigns, state efforts.
Chris Mitchell:
One of the things that drives me nuts is that one of the things we saw in Citizens United was this claim. As long as we have disclosure, everything’s going to be okay. And what do we see? We see Tempe voting 91% to just disclose campaign contributions in their municipal races, and the state blocked it. We see that when there was an issue in the federal government to deal with disclosure, not to limit what some people view as free speech, which is money, which I think is very problematic and I don’t think our founders would have agreed with at all. But nonetheless, just to disclose it, every single Democrat voted for it. Every single Republican tried to stop it, and including anonymous holds that the media program, on the media, did a great job of covering. And so we did see this idea that, oh, this dark money won’t be a problem because we’ll disclose it, but that’s just totally being attacked.
Kim Haddow:
Oh well, and the other thing is, I mean let’s remember there was a really concerted effort on the right, much of it led by the Koch brothers and others, to say that to disclose is an infringement of free speech. I mean they are trying to make an a first amendment right. These are people who are acting within their rights and they don’t have to be disclosed. And this has a been a very strong argument since Citizens United.
Chris Mitchell:
So I interrupted you. You were talking about 2010, what led to the rise of preemption. One of those things is this rise of dark money. So what else was there?
Kim Haddow:
The open gate and the open door on corporate giving. The other thing was really looking at, basically the Republicans just smoked it in the 2010 midterms. They went from nine to 21 trifectas, which means that they had control over the governor’s race and both houses of the legislature in 21 States. They saw over 650 seats flipped to their advantage. I mean that is the largest takeover since the mid-30s by a single party of state seats. And so frankly they increased the money they had because of Citizens United. They increased their political muscle because of their wins in the midterms. And then I think people need to understand that there was a body of bills, model bills that had already been worked through and were part of the anti-regulatory agenda that had been created by ALEC, the American Legislative Exchange Council. Which is a industry-funded organization that about one in four state lawmakers belong to. Which really is a bill mill.
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.
Chris Mitchell:
I think one of the things that’s worth noting is that this is a part of a much larger issue that you’re well aware of. But I want to make sure people understand because sometimes there’s this perception that, well, if we have a bunch of model bills then can’t we do the same thing? And the issue is that when one of the ALEC legislators uses those bills, they get money for their campaign contributions from very powerful interests that want to enact it. And so they have a whole ecosystem that they have built in order to spread those bills around in ways that are, it’s important to know that ALEC is one piece. It’s a very important piece and it’s a source, but it can’t exist in a vacuum by itself.
Kim Haddow:
You know, I would highly recommend to your listeners to read State Capture. This is a new book that is really looking at what is called the Troika, right? So it’s ALEC that creates the bills. There is the State Policy Network, which is a collaboration of think tanks that provide academic cover, talking points, those kinds of here’s the reason and the justification for this. And then there is Americans for Prosperity, which is the grassroots implementation of this. That is, as you say, a very well-constructed, well-funded ecosystem.
Chris Mitchell:
So I’m going to take a quick break. We’re going to come back, and now that we’ve laid the field, we’re going to talk more about what we can do about it.
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?
Kim Haddow:
Well, I mean I think what happened is is that, frankly, the legislature flipped and that you saw that there was advocates had now a set of lawmakers who were interested in repealing preemption. I mean, one of the things we’ve seen this session that we’ve never seen is just an enormous number of preemption repeal bills filed in 13 States. There were bills to repeal minimum wage preemption, which is huge, again, and unprecedented. We have not seen that before.
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.
Chris Mitchell:
One of the things that I love to see coming from the upper Midwest here was in Wisconsin. The new democratic governor came in with a very strong anti-preemption approach. He made it a part of his campaign.
Kim Haddow:
Well we have been in contact with governor Evers, who has really just said, “I have a hostile legislature. There is not much I can move legislatively, but as an executive, using my administrative abilities and my executive powers, I am going to try to undo as much of the state preemption as I can and to just unleash the ability of localities to make their own laws and decisions.”
Chris Mitchell:
So we at Institute for Local Self-Reliance, and especially on Building Local Power, we really try to avoid falling into sort of tribal red vs blue discussions. And I’m curious, now Minnesota is the only state that has a divided legislature at this point. And it’s divided by one person or two people in the Senate. I forget if there was a change. And so we have a lot of States that have entirely blue democratic legislature. Are those areas in which we’re seeing more of the repeals or is this something that is truly very tribal red versus blue or is it more complicated than that?
Kim Haddow:
I think it’s very much more complicated than that. I mean, let’s be very clear, we see preemption also being used by triple blue state. For example, if you look at Maine, they passed a paid family and medical leave bill that includes preemption. In Oregon, the same thing. So we see, Rhode Island passed a minimum wage increase a couple years ago, a blue state, that also included preemption. Maryland also included preemption when its paid sick days bill passed last year. So it’s not, these are traditionally blue states. It’s not that simple. It’s not just red versus blue.
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.
Chris Mitchell:
So I think this is something I warned you that I was going to throw some Hayak at you. Friedrich Hayek, and he wrote a book, The Road to Serfdom, which is a very anti-socialist book from the 40s that is in many ways a bible of the Libertarian movement. I also actually happen to think that he’s a very clear thinker and very anti-centralization, which is where his anti-socialist outlook came from. But I pulled out two quotes that I wanted to read that I thought were useful in terms of discussing why this preemption is such a bad idea. Because a lot of the people who have been anti-socialists have recognized that modern society, even 75 years ago was so complicated. It’s hard for one person or one body to make all the different decisions and decide everything.
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.
Kim Haddow:
I mean, one of the things we’ve done when we’ve done our research and polling is, is that there is more trust for the local elected officials than in any other level of government. And part of it is is because these are folks who live in the community, they’re sharing the same problems, they’re seeing the same possible solutions. And I do think that at the community level and at the local level, there is the ability, and traditionally and historically has proven to be the ability, to be the best folks to deal with local problems. I don’t think that’s rocket science. And it does not make sense when you have someone a thousand miles away, as Tallahassee is from parts of Florida, to actually deal with what’s going on in the local neighborhood. It just doesn’t make sense.
Chris Mitchell:
Now that I got that out, I should also note that the Institute for Local Self-Reliance is not necessarily pushing Hayak on anyone. There’s certainly these people here are probably don’t have … treat him in as high of regard as I do. Let me ask you, if you go back to your report, what are some of the trends we need to make sure we note on?
Kim Haddow:
What we saw in the 2019 session is, frankly, pretty much what we’ve seen in the sessions since 2011. We saw a huge number of preemption bills filed in some states. 62 preemption bills filed in Texas, 34 in Florida. My Lord. Then we saw what we have seen historically, which is the same bill introduced, this as the ALEC play, right? Which is introducing the same bill in several legislators at the same time and just being happy if one or two of them passes. Because it aggregates to the larger chipping away of local ability to move some policies. So that’s how you get to half the states having minimum wage preemption and 23 of the states having paid six days preemption. Every session, just adding a state or two, adding a state or two.
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.
Chris Mitchell:
And I think it’s worth noting why they can come back year after year after year. We sometimes think of this as the zombie problem, which is that even if it takes them 20 years, if they win, they will still save money because of the way that they’re able to either do business in a lower cost way or extract more resources from communities. And so they have an incentive every year to put it in even if they have a low chance of winning because they can save so much money or make so much more money if they win in any one year out of 20 or 30.
Kim Haddow:
Yep, absolutely. Other trends we continue to see that we’ve talked about it a little bit earlier was the punitive attachments to preemption bills. We see these a lot around guns. We see these a lot around sanctuary city bills. I mean frankly we had several states that passed sanctuary city bills, including Florida. There are three states that passed sanctuary city bills. All of them included a punishment for cities in the form of a cut off of state funding to localities that defied ICE or refused to sign the detainer agreement.
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.
Chris Mitchell:
Well with the rise of some of the anti-preemption efforts, the kind of movement that we want to see where preemptions being ruled back, what are the best ways that we can move in that direction to make sure that our local governments have more authority to solve problems themselves?
Kim Haddow:
So I think what you, we have talked about, some of this is about a structural change. Has there been a shift in who’s in control of the legislature? What we have been investing in at the Local Solutions Support Center is really building cross-issue coalitions. We look at Florida and Texas and Arizona and other places where we’ve been working with cross-issue coalitions that we are helping to support. And Florida is a very good example. I mean the groups include everything from the LGBTQ groups in Florida to the Sierra Club to women’s organizations to actually looking at the municipal league and the association of counties. Folks who understand that issue by issue, if you take preemption issue by issue, it’s a death by a thousand cuts, right?
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.
Chris Mitchell:
For people who are interested, you mentioned the Florida, the 30 mayors. We interviewed mayor Andrew Gillum about two years ago, I think it was, about some of these issues before we knew how they would wrap up. So we talked about preemption quite a bit in that call for Building Local Power.
Kim Haddow:
He’s quite the champion.
Chris Mitchell:
He is. So let me ask you if there’s anything else, because we’ve run out of time. But I also want to give you a chance to make sure that we’ve touched on all the topics you think are important. People definitely need to read the report, but what else would you highlight?
Kim Haddow:
I would say that I do think after almost a decade of this happening in state after state, I feel like our contribution has been is to sort of connect the dots here and to show people. We talked to the Flagstaff mayor, Coral Evans, and she said, “Wow, I’m so happy to hear this. We thought we had the corner on crazy in Arizona.” No, I mean what we are seeing, this increase in preemption is happening everywhere. And frankly, part of our job is to educate people that this is not unique to your state, this is not unique to issues you care about. This is happening everywhere. It is happening quite deliberately. There is a national deregulatory agenda that’s being pushed. And frankly, there are steps that can be taken that now you know that this is not unique to you, that the same bill and model bill has been introduced in many places. It is really time to figure out how collectively we can stop this and repeal this and regain and claw back the powers that actually localities used to have. Not just that, but the partnership that used to exist between states and cities.
Chris Mitchell:
I’d really like to see that and I’m really glad to be working with you to remove the all this preemption and state interference, right?
Kim Haddow:
Exactly.
Chris Mitchell:
We can run a little bit long for this. I get to make these sorts of decisions I guess. I think we also have to be willing, this is a, I want to phrase this in a way that’s careful because this is not the problem that we face. We face a problem with very powerful corporations that are running this preemption campaign and in this whole, the whole larger deregulatory campaign you’ve mentioned. At the same time, to live in a society in which we are going to really oppose preemption, we also have to be willing to say, “I may not want to live in that town over there because they make decisions differently from me.” And I think about this when it comes to guns a lot in ways that, again, I don’t think everyone would agree with me. But I live in the city of St Paul and I actually happen to live less than a mile from a police precinct.
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.
Kim Haddow:
Well, amen. I mean that is why local government exists. As I said, to reflect the views and values and unique circumstances within each community. We are not a homogeneous set of states and we are not a homogeneous set of communities. And that’s the beauty of America, right? God bless us. We accommodate a broad swath of very different people and very different beliefs and very different cultures. And the fact that this division or this partisanship that now exists in our nation is frankly a heartbreak.
Chris Mitchell:
Thank you so much, Kim, we could go on for a very long time. And I would love to have you back on as we have more wins to talk about.
Kim Haddow:
That would be thrilling. That would be exciting. Thank you for having me.
Chris Mitchell:
So Hibba, do you feel like you have gained a new understanding of preemption that you’re going to lead your life differently having heard that interview?
Hibba Meraay:
Definitely. One of the most life changing interviews I think I’ve ever heard.
Chris Mitchell:
I like that. I appreciate that. I’m about to go on my own little vacation here. So I’m going to carry that with me and think that I’ve materially altered your life with the words that I asked Kim Haddow. So I hope, actually on a serious note, I should say that I really do hope that people are taking this seriously. We try to have fun with it, but we take it very seriously. And I really appreciate you all listening, to hear this wrap up banter. So have a great day everyone. I’m going on vacation to catch a little bit of the rest of the summer.
Hibba Meraay:
Thank you all for tuning into this episode of Building Local Power from the Institute for Local Self-Reliance. You can find all the links to what we discussed today archive.ilsr.org by clicking on the show page for this episode. That’s archive.ilsr.org. While you’re there, you can sign up for one of our many newsletters and connect with us on social media.
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.
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Host Chris Mitchell is joined by Kim Haddow, Director of the Local Solutions Support Center, for a robust conversation on preemption and Kim’s efforts to get power back into the hands of local decision makers.
Kim Haddow, Local Solutions Support Center
They also discuss:
If you look at preemption issue by issue, it’s death by a thousand cuts. It’s only when you aggregate it and look at the erosion of local democracy, undoing the ability of local government to reflect the views and values of their own constituents, that there’s a reason to come together and object preemption.
Related Resources
Transcript
Chris Mitchell:
Hey, Hibba, the Institute for Local Self-Reliance’s communications manager. Are you back from your short vacation and ready for some Building Local Power?
Hibba Meraay:
Hey Chris, I am and I’m so ready for another episode of Building Local Power.
Chris Mitchell:
Nothing like hitting the desk and getting right back to work. I’m excited about this interview. I’ve been wanting to do it for a while.
Hibba Meraay:
So today you talk about a really interesting topic and that is preemption. So I think the first important thing to say to our listeners is what is preemption and why is it important?
Chris Mitchell:
Hey listeners, tell us what preemption is. Sorry. I think this is really important. Preemption is basically where the states tell the cities … or where a higher unit of government tells a lower level of government that it cannot do certain things. We’re going to talk about a report from the Local Solutions Support Center in which they talk all about this. They define it really well but just to give people a very brief sense leading into it, I wanted to note, there’s 25 states that preempt local minimum wage laws in which a locality would want to set a higher minimum wage than the lowest one for the state or the federal government. 23 states ban local paid sick days, 44 states ban local regulation of ride sharing networks. We talk frequently about the 20 states that ban, or have barriers to, community networks.
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.
Hibba Meraay:
Right. Like you said, the issue areas are really broad and a lot of them are hot topics that people are paying a lot of attention to, like minimum wage law is something that you guys touch on as well. I think my other question for you, Chris, is why are we specifically at the Institute for Local Self-Reliance talking about this? To me the answer is that this is really an issue of power. We’re talking about decentralizing power and we’re essentially arguing that decision making should be made by the people who are most affected by it.
Chris Mitchell:
Absolutely. Yeah, I don’t know if I could even add anything to that because I think you’ve covered it very well. We think decisions should be made locally. We think people should have power over their own lives and if they are not allowed to legislate on important things, or even on a plastic bag law, it doesn’t seem like it should be a major political fight, that if a city wants to either have a fee on a plastic bag or to try to discourage them, it seems to me that that should be something that the city should be able to do. So that’s what we’re going to be talking about.
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.
Hibba Meraay:
Great. So now let’s tune in to the interview with Chris and Kim Haddow from the Local Solutions Support Center.
Chris Mitchell:
All right, so here I am now talking with Kim Haddow, the director of the Local Solutions Support Center, which is located in a city that’s spelled New Orleans, but I believe it’s pronounced New Orleans.
Kim Haddow:
New Orleans, that’s right.
Chris Mitchell:
Welcome to Building Local Power, Kim, something that you spend a whole heck of a lot of time doing at the LLS, or excuse me, the LSSC and I’ll try to avoid baiting you with any sort of Saints, Vikings, NFL references or anything like that since we’re supposed to have a rivalry.
Kim Haddow:
Let’s not, let’s not,
Chris Mitchell:
We’re going to talk about preemption and you have released … Well, the LSSC has released and you were one of the principal authors, The Growing Shadow Of State Interference Preemption in the 2019 state legislative sessions, which is a very easy, accessible read to quickly get up to speed on what preemption is, the direction it’s going, why we should be concerned, why there’s hope and what we can do about it. But we’ll talk about that for the rest of our conversation but let me start by just asking you what is the Local Solutions Support Center?
Kim Haddow:
Okay, so we have been around basically formally for two years, and this is a national hub. Our goal is to connect people who are concerned about the increasing abuse of state preemption to limit local lawmaking. So there are folks who are working in different issue silos, in different states, attacking this differently and who frankly don’t know that each other exist. So part of our job is to make those connections.
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.
Chris Mitchell:
We should note that that this report that I referenced, which you should check out online, we’ll have a link to it in the show notes, was also written by the State Innovation Exchange. So we want to give them a credit too.
Kim Haddow:
Right, absolutely.
Chris Mitchell:
So I think it’s worth noting something. One of the first things that I learned when I came to the Institute for Local Self-Reliance 12 years ago was this idea of preemption and the idea that we should have floors, not ceilings. It strikes me that at least in Minnesota we like both but what are we actually talking about when we’re talking about floors, not ceilings?
Kim Haddow:
So, I think that it’s important to remember that preemption has been around as a legal tool for a very long time. Frankly it’s been used by both parties and it’s been used for good. I mean, what we’re seeing now is something very different, which we can talk about in detail in a minute but what what traditionally has happened is, is that, sometimes the states and cities pass laws that are in conflict and preemption is a way to sort of neaten up and make sure that there is no conflicts. Historically, that’s one of the ways it’s been used. But most often it’s been used because the state has set minimum standards, or what we call a floor that then the localities are able to build on top of. They can customize to local needs and constituents, they can strengthen what’s required by the state without having to go … this is their authority and legally their ability to build on what the state has set as a minimum and to go beyond and to enhance what the state has done.
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.
Chris Mitchell:
Right, that punishment seems to be something that’s also new and I think we should get into that. One of the things that I want to note to begin with though is that the law on this is, I would say unfortunately, pretty clear. So when we’re talking about this, you and I aren’t debating whether or not states have the right to do this under the system we have in the United States, states have brought authority because cities are considered subdivisions of the state and so the state can do whatever it wants. We’re talking about the wisdom and what happens as a result of this and I think that’s worth being clear about with listeners as we get started.
Kim Haddow:
Well, actually let me push back on that because I frankly think there are two things going on here. One of them is what has historically been the custom. So for very long time, states and cities worked in partnership, there was a collaborative … and there was certainly an allowance for local tailoring of laws as we just talked about. The state would establish a floor and then the localities could go customize it or make it something that applied uniquely to themselves and reflected the values and customs and culture of their own unique communities. That has been the custom for a very long time. That is what we’re seeing this break in norms as we’re seeing a break in democratic norms, you know, all over the place in the last decade, but particularly since 2016.
Chris Mitchell:
Right, it’s a rough decade to be a norm, I think
Kim Haddow:
Very funny but the other thing is, that frankly there are more powers that cities have. I mean, in some places charter cities have actually very proscribed powers in their constitution and what we’ve been seeing is an overreach, or an overstepping by states into that area. We see case law that comes down on both sides. So cities have powers and the states in some instances are actually overstepping the constraints on where the limits are on their power. So cities had rights.
Chris Mitchell:
Right, I agree with that. I think if anything, I would like to see more rights, more home rule authority and that sort of a thing. So I wouldn’t change anything that you say, you’re right in that I painted too stark of a picture. Nonetheless, I think cities are somewhat at a disadvantage in this situation. Now this is why we see quotes, one that you highlighted from Victor L. Crawford, former Tobacco Institute lobbyist who says, “We could never win at the local level.” The tobacco companies, he’s saying could never win at the local level. Then he says, “The first priority has always been to preempt the field.”
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.
Kim Haddow:
Correct, and I think that works and in a very pragmatic way and also in a very political way. So in a pragmatic way, I mean, think about it, the National League of Cities recognizes 19,000 cities, towns, townships, local divisions of jurisdiction. So, at the end of the day, the tobacco company’s not going to go city by city and town by town to fight for what they want. There was an efficiency in working only in 50 state capitals. So that’s part of what’s driving this but the other thing is frankly, there is a lot of activism at the local level. Communities are very well organized in many, many places to fight back in a way that states aren’t. So I think that what … there is a real political advantage, not even talking about the fact that there is obviously lobbying that goes on and campaign contributions that go on but part of what happens is is just the way that the organizational culture work is it’s much harder for these industries to win at the local level than at the state level.
Chris Mitchell:
Now, I want to make an argument that goes against pretty much everything we stand for at the Institute for Local Self-Reliance and that would be an argument that I would make just for the purpose of this conversation that, well let’s say that you have a big corporation that wants to do business in a state and it doesn’t want to have to deal with all of those local laws. Why is it a problem? Isn’t it a problem to have a patchwork in a modern economy where we have such big companies that are trying to do business everywhere?
Kim Haddow:
Well what you call a patchwork, I call localism. The job of local government is to represent what the unique views and values and culture of its own community are. So you live in a state that is … I mean, look at the difference in cities in one state. I mean, look at the difference between El Paso and Galveston, just in Texas for example. I mean, major differences both in history, in culture, in population, in industry. Those differences, those variations need to be, and have previously have been allowed to be reflected in laws. Why should one size fit all? In many instances it doesn’t and it is actually a detriment to try to force rural communities to do the same things that work in urban communities and vice versa. I think the gun laws are a very interesting example of how this is … within States.
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.
Chris Mitchell:
Yeah. One of the things that I think about, and this comes back to really my beliefs, my true beliefs I should say, is that if I look at Missouri and I thought about Missouri because they’re having a fight over minimum wage in Kansas City and I felt like the conservative lawmakers that wanted to preempt, wanted to have it both ways. Now, if I just stepped back and I think to myself, should the minimum wage be the same in Kansas City as in a town of a thousand people in a farming region of Missouri? Obviously the answer is no. There’s radically different costs of living. There’s different opportunities.
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.
Kim Haddow:
There is, frankly, a lot of animosity in many states between the largest city and the legislature, or the rural and urban populations. But I would say, you’ve actually put your finger on it, because for us, we’re looking at who decides. I mean that’s the core question, right? It’s not really whether you’re for or against raising the minimum wage. We can debate the merits of that separately, but Kansas City should be able to decide for itself just as Jefferson City or Poplin or any other place should be able to decide for itself, right? What works, what doesn’t work, what’s onerous, what’s affordable. Those are things that people within their own community can gauge.
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.
Chris Mitchell:
Well, and there’s one other thing that you raised, and I think it’s hard to disentangle, but that doesn’t mean that we should run away from it. And that’s, there’s an issue of race. You know that legislatures tend to be more white than the states that they’re representing in most cases. And a lot of the cities that they’re preempting, particularly in Alabama where I believe you notice this, they tend to be filled with people of color, in particular African Americans. And so there’s a real dynamic there as well.
Kim Haddow:
Oh, an incredible dynamic. And I think that if you just look at where the preponderance of preemption has occurred around minimum wage, paid sick days, predictive scheduling, ban the box, these are all policies that women need, people of color need, low wage workers need, those folks disproportionately are affected by preemption. And clearly, I mean we’re living in a time when still over 83% of state lawmakers are white, over somewhere around 76% of them, I think is the latest count, are male. And so we’re still living with this white male control over other populations. And to think that that is not animating some of what we’re seeing would be naive.
Chris Mitchell:
Now let’s talk a little bit about the direction. You note that preemption has grown every year since 2010. What have you been seeing within the past 10 years more generally?
Kim Haddow:
Basically if you look at 2010, really a couple of things sort of converged. One of them was the Citizens United Supreme Court decision. And people tend to think about this playing out, how it plays out in federal races and congressional races. But truly had a deep impact on what happened in states. Because the Supreme Court decision basically opened the portal to corporate giving, undisclosed corporate giving. And what you saw was that also affected giving laws in at least 24 States according to the Nation Council of State Legislatures. They had to go in and change their laws to be in compliance with the Supreme Court. So what opened the door to corporate giving in federal races also opened the door in terms of contributions to state campaigns, state efforts.
Chris Mitchell:
One of the things that drives me nuts is that one of the things we saw in Citizens United was this claim. As long as we have disclosure, everything’s going to be okay. And what do we see? We see Tempe voting 91% to just disclose campaign contributions in their municipal races, and the state blocked it. We see that when there was an issue in the federal government to deal with disclosure, not to limit what some people view as free speech, which is money, which I think is very problematic and I don’t think our founders would have agreed with at all. But nonetheless, just to disclose it, every single Democrat voted for it. Every single Republican tried to stop it, and including anonymous holds that the media program, on the media, did a great job of covering. And so we did see this idea that, oh, this dark money won’t be a problem because we’ll disclose it, but that’s just totally being attacked.
Kim Haddow:
Oh well, and the other thing is, I mean let’s remember there was a really concerted effort on the right, much of it led by the Koch brothers and others, to say that to disclose is an infringement of free speech. I mean they are trying to make an a first amendment right. These are people who are acting within their rights and they don’t have to be disclosed. And this has a been a very strong argument since Citizens United.
Chris Mitchell:
So I interrupted you. You were talking about 2010, what led to the rise of preemption. One of those things is this rise of dark money. So what else was there?
Kim Haddow:
The open gate and the open door on corporate giving. The other thing was really looking at, basically the Republicans just smoked it in the 2010 midterms. They went from nine to 21 trifectas, which means that they had control over the governor’s race and both houses of the legislature in 21 States. They saw over 650 seats flipped to their advantage. I mean that is the largest takeover since the mid-30s by a single party of state seats. And so frankly they increased the money they had because of Citizens United. They increased their political muscle because of their wins in the midterms. And then I think people need to understand that there was a body of bills, model bills that had already been worked through and were part of the anti-regulatory agenda that had been created by ALEC, the American Legislative Exchange Council. Which is a industry-funded organization that about one in four state lawmakers belong to. Which really is a bill mill.
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.
Chris Mitchell:
I think one of the things that’s worth noting is that this is a part of a much larger issue that you’re well aware of. But I want to make sure people understand because sometimes there’s this perception that, well, if we have a bunch of model bills then can’t we do the same thing? And the issue is that when one of the ALEC legislators uses those bills, they get money for their campaign contributions from very powerful interests that want to enact it. And so they have a whole ecosystem that they have built in order to spread those bills around in ways that are, it’s important to know that ALEC is one piece. It’s a very important piece and it’s a source, but it can’t exist in a vacuum by itself.
Kim Haddow:
You know, I would highly recommend to your listeners to read State Capture. This is a new book that is really looking at what is called the Troika, right? So it’s ALEC that creates the bills. There is the State Policy Network, which is a collaboration of think tanks that provide academic cover, talking points, those kinds of here’s the reason and the justification for this. And then there is Americans for Prosperity, which is the grassroots implementation of this. That is, as you say, a very well-constructed, well-funded ecosystem.
Chris Mitchell:
So I’m going to take a quick break. We’re going to come back, and now that we’ve laid the field, we’re going to talk more about what we can do about it.
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?
Kim Haddow:
Well, I mean I think what happened is is that, frankly, the legislature flipped and that you saw that there was advocates had now a set of lawmakers who were interested in repealing preemption. I mean, one of the things we’ve seen this session that we’ve never seen is just an enormous number of preemption repeal bills filed in 13 States. There were bills to repeal minimum wage preemption, which is huge, again, and unprecedented. We have not seen that before.
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.
Chris Mitchell:
One of the things that I love to see coming from the upper Midwest here was in Wisconsin. The new democratic governor came in with a very strong anti-preemption approach. He made it a part of his campaign.
Kim Haddow:
Well we have been in contact with governor Evers, who has really just said, “I have a hostile legislature. There is not much I can move legislatively, but as an executive, using my administrative abilities and my executive powers, I am going to try to undo as much of the state preemption as I can and to just unleash the ability of localities to make their own laws and decisions.”
Chris Mitchell:
So we at Institute for Local Self-Reliance, and especially on Building Local Power, we really try to avoid falling into sort of tribal red vs blue discussions. And I’m curious, now Minnesota is the only state that has a divided legislature at this point. And it’s divided by one person or two people in the Senate. I forget if there was a change. And so we have a lot of States that have entirely blue democratic legislature. Are those areas in which we’re seeing more of the repeals or is this something that is truly very tribal red versus blue or is it more complicated than that?
Kim Haddow:
I think it’s very much more complicated than that. I mean, let’s be very clear, we see preemption also being used by triple blue state. For example, if you look at Maine, they passed a paid family and medical leave bill that includes preemption. In Oregon, the same thing. So we see, Rhode Island passed a minimum wage increase a couple years ago, a blue state, that also included preemption. Maryland also included preemption when its paid sick days bill passed last year. So it’s not, these are traditionally blue states. It’s not that simple. It’s not just red versus blue.
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.
Chris Mitchell:
So I think this is something I warned you that I was going to throw some Hayak at you. Friedrich Hayek, and he wrote a book, The Road to Serfdom, which is a very anti-socialist book from the 40s that is in many ways a bible of the Libertarian movement. I also actually happen to think that he’s a very clear thinker and very anti-centralization, which is where his anti-socialist outlook came from. But I pulled out two quotes that I wanted to read that I thought were useful in terms of discussing why this preemption is such a bad idea. Because a lot of the people who have been anti-socialists have recognized that modern society, even 75 years ago was so complicated. It’s hard for one person or one body to make all the different decisions and decide everything.
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.
Kim Haddow:
I mean, one of the things we’ve done when we’ve done our research and polling is, is that there is more trust for the local elected officials than in any other level of government. And part of it is is because these are folks who live in the community, they’re sharing the same problems, they’re seeing the same possible solutions. And I do think that at the community level and at the local level, there is the ability, and traditionally and historically has proven to be the ability, to be the best folks to deal with local problems. I don’t think that’s rocket science. And it does not make sense when you have someone a thousand miles away, as Tallahassee is from parts of Florida, to actually deal with what’s going on in the local neighborhood. It just doesn’t make sense.
Chris Mitchell:
Now that I got that out, I should also note that the Institute for Local Self-Reliance is not necessarily pushing Hayak on anyone. There’s certainly these people here are probably don’t have … treat him in as high of regard as I do. Let me ask you, if you go back to your report, what are some of the trends we need to make sure we note on?
Kim Haddow:
What we saw in the 2019 session is, frankly, pretty much what we’ve seen in the sessions since 2011. We saw a huge number of preemption bills filed in some states. 62 preemption bills filed in Texas, 34 in Florida. My Lord. Then we saw what we have seen historically, which is the same bill introduced, this as the ALEC play, right? Which is introducing the same bill in several legislators at the same time and just being happy if one or two of them passes. Because it aggregates to the larger chipping away of local ability to move some policies. So that’s how you get to half the states having minimum wage preemption and 23 of the states having paid six days preemption. Every session, just adding a state or two, adding a state or two.
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.
Chris Mitchell:
And I think it’s worth noting why they can come back year after year after year. We sometimes think of this as the zombie problem, which is that even if it takes them 20 years, if they win, they will still save money because of the way that they’re able to either do business in a lower cost way or extract more resources from communities. And so they have an incentive every year to put it in even if they have a low chance of winning because they can save so much money or make so much more money if they win in any one year out of 20 or 30.
Kim Haddow:
Yep, absolutely. Other trends we continue to see that we’ve talked about it a little bit earlier was the punitive attachments to preemption bills. We see these a lot around guns. We see these a lot around sanctuary city bills. I mean frankly we had several states that passed sanctuary city bills, including Florida. There are three states that passed sanctuary city bills. All of them included a punishment for cities in the form of a cut off of state funding to localities that defied ICE or refused to sign the detainer agreement.
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.
Chris Mitchell:
Well with the rise of some of the anti-preemption efforts, the kind of movement that we want to see where preemptions being ruled back, what are the best ways that we can move in that direction to make sure that our local governments have more authority to solve problems themselves?
Kim Haddow:
So I think what you, we have talked about, some of this is about a structural change. Has there been a shift in who’s in control of the legislature? What we have been investing in at the Local Solutions Support Center is really building cross-issue coalitions. We look at Florida and Texas and Arizona and other places where we’ve been working with cross-issue coalitions that we are helping to support. And Florida is a very good example. I mean the groups include everything from the LGBTQ groups in Florida to the Sierra Club to women’s organizations to actually looking at the municipal league and the association of counties. Folks who understand that issue by issue, if you take preemption issue by issue, it’s a death by a thousand cuts, right?
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.
Chris Mitchell:
For people who are interested, you mentioned the Florida, the 30 mayors. We interviewed mayor Andrew Gillum about two years ago, I think it was, about some of these issues before we knew how they would wrap up. So we talked about preemption quite a bit in that call for Building Local Power.
Kim Haddow:
He’s quite the champion.
Chris Mitchell:
He is. So let me ask you if there’s anything else, because we’ve run out of time. But I also want to give you a chance to make sure that we’ve touched on all the topics you think are important. People definitely need to read the report, but what else would you highlight?
Kim Haddow:
I would say that I do think after almost a decade of this happening in state after state, I feel like our contribution has been is to sort of connect the dots here and to show people. We talked to the Flagstaff mayor, Coral Evans, and she said, “Wow, I’m so happy to hear this. We thought we had the corner on crazy in Arizona.” No, I mean what we are seeing, this increase in preemption is happening everywhere. And frankly, part of our job is to educate people that this is not unique to your state, this is not unique to issues you care about. This is happening everywhere. It is happening quite deliberately. There is a national deregulatory agenda that’s being pushed. And frankly, there are steps that can be taken that now you know that this is not unique to you, that the same bill and model bill has been introduced in many places. It is really time to figure out how collectively we can stop this and repeal this and regain and claw back the powers that actually localities used to have. Not just that, but the partnership that used to exist between states and cities.
Chris Mitchell:
I’d really like to see that and I’m really glad to be working with you to remove the all this preemption and state interference, right?
Kim Haddow:
Exactly.
Chris Mitchell:
We can run a little bit long for this. I get to make these sorts of decisions I guess. I think we also have to be willing, this is a, I want to phrase this in a way that’s careful because this is not the problem that we face. We face a problem with very powerful corporations that are running this preemption campaign and in this whole, the whole larger deregulatory campaign you’ve mentioned. At the same time, to live in a society in which we are going to really oppose preemption, we also have to be willing to say, “I may not want to live in that town over there because they make decisions differently from me.” And I think about this when it comes to guns a lot in ways that, again, I don’t think everyone would agree with me. But I live in the city of St Paul and I actually happen to live less than a mile from a police precinct.
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.
Kim Haddow:
Well, amen. I mean that is why local government exists. As I said, to reflect the views and values and unique circumstances within each community. We are not a homogeneous set of states and we are not a homogeneous set of communities. And that’s the beauty of America, right? God bless us. We accommodate a broad swath of very different people and very different beliefs and very different cultures. And the fact that this division or this partisanship that now exists in our nation is frankly a heartbreak.
Chris Mitchell:
Thank you so much, Kim, we could go on for a very long time. And I would love to have you back on as we have more wins to talk about.
Kim Haddow:
That would be thrilling. That would be exciting. Thank you for having me.
Chris Mitchell:
So Hibba, do you feel like you have gained a new understanding of preemption that you’re going to lead your life differently having heard that interview?
Hibba Meraay:
Definitely. One of the most life changing interviews I think I’ve ever heard.
Chris Mitchell:
I like that. I appreciate that. I’m about to go on my own little vacation here. So I’m going to carry that with me and think that I’ve materially altered your life with the words that I asked Kim Haddow. So I hope, actually on a serious note, I should say that I really do hope that people are taking this seriously. We try to have fun with it, but we take it very seriously. And I really appreciate you all listening, to hear this wrap up banter. So have a great day everyone. I’m going on vacation to catch a little bit of the rest of the summer.
Hibba Meraay:
Thank you all for tuning into this episode of Building Local Power from the Institute for Local Self-Reliance. You can find all the links to what we discussed today archive.ilsr.org by clicking on the show page for this episode. That’s archive.ilsr.org. While you’re there, you can sign up for one of our many newsletters and connect with us on social media.
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.
Like this episode? Please help us reach a wider audience by rating Building Local Power on iTunes or wherever you find your podcasts. And please become a subscriber! If you missed our previous episodes make sure to bookmark our Building Local Power Podcast Homepage.
If you have show ideas or comments, please email us at [email protected]. Also, join the conversation by talking about #BuildingLocalPower on Twitter and Facebook!
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Audio Credit: Funk Interlude by Dysfunction_AL Ft: Fourstones – Scomber (Bonus Track). Copyright 2016 Licensed under a Creative Commons Attribution Noncommercial (3.0) license.
Photo Credit: Rutter & Roy
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