Cities Versus States

I ran across this piece by Abby Rapoport on Politico (which sponsors some good long-form investigations when it’s not playing DC Gossip Rag), by way of Erik Loomis at Lawyers, Guns and Money. It’s a good analysis of the significance of the conflict between state legislatures and municipal governments, particularly as the former have been gerrymandered to include more seats where Republican primaries decide who’s elected.

Since I’ve studied and written about this issue in some depth, I would point out that this is one of the best popular accounts of the history of preemption and the legal status of municipal power I’ve read. Rapoport gets into the technicalities of municipal home rule, gets quotes from two of the leading academic legal scholars on the subject, and explains why the subject, which even many civically engaged Americans may not understand, is critically important for democracy, by letting the local activists whose work has been preempted by state governments in Texas and elsewhere tell their stories.

What’s particularly important is Rapoport’s summary of the distinction between “minimum” preemption, where state governments establish minimum levels of regulatory or other action that city governments must meet, and “maximum” preemption, where state governments actively prohibit local governments from taking action. Many critics accurately note that the American Legislative Exchange Council (ALEC) is an incubator for maximum preemption bills that specifically target corporate or social conservative boogeymen like local fracking bans, living wage laws, and anti-discrimination laws. What I hadn’t recognized before reading this account was that the strategy of maximum preemption actually goes back to the lobbying efforts of the tobacco industry:

The strategic use of maximum preemption laws dates back to the 1980s, when localities began passing smoking bans and smoke-free requirements. As court documents later revealed, R.J. Reynolds began promoting preemption because, in its own words, “state laws which preempt local anti-tobacco ordinances are the most effective means to counter local challenges.” Although further grim research findings eventually dealt the tobacco industry’s campaign mortal blows, other groups learned from its efforts. The National Rifle Association used similar tactics in the 1990s when concerns about crime prompted local gun regulations; 43 states now have some form of maximum preemption preventing localities from passing additional gun regulations on top of state law.

Which makes sense in a head-to-desk sort of way. The tobacco industry pioneered many of the denialist and doubt-seeding tactics thathave proven useful to thwart climate change action, ignore the need for gun control, and slow environmental and consumer safety laws (Naomi Oreskes and Erik Conway describe it in Merchants of Doubt. If you’re really lazy about reading, there’s now a film).

As Americans (rightly) pay attention to the presidential election, it’s important to remember that the battles that define what kind of society we live in will be fought closer to home, in the space between state and local governments. Which space is, sadly, filled with lobbyists and hacks operating largely without scrutiny because the state houses are actually far less visible to the typical person than either the Capitol or City Hall.

Loomis offers a good summary of the federalism-of-convenience for the right that I may as well quote here, since I’d be saying the same thing in different words:

There’s a very specific reason why conservatives fetishize state government, even to the point of calling for the repeal of the Seventeenth Amendment. All the talk about devolution that came out of the 90s stops right at the state capitol. It’s not about principle. It’s about conservative control. The federal government is too big for corporations or movement conservatives to easily control. Cities are too small. States are just right. State legislators can be bought off for incredibly small amounts of campaign donations. So making the federal government powerless, unless it wants to do corporate bidding, and making the cities powerless is part the conservative game to maintain power. And it’s been that way since at least the 1930s, when corporations complained about federal control and wanted power to reside at the state level. That’s what these wars on liberal cities are about in red states. Some of these cases, like the Denton fracking ban or Austin’s rejection of Uber, are about corporate control, others like HB 2 in North Carolina, are not. But for each type of conservative group, the state is where they see power residing precisely because that’s where it’s easiest for them to control that power.

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