In his 1996 State of the Union Address Democratic President Bill Clinton famously declared, “the era of big government is over.” And during his tenure he did everything he could to make that true—deregulating the telecommunications and the financial industries; enacting a free trade agreement severely restricting the authority of the federal government to protect domestic jobs and businesses; and abandoning the 75-year old federal commitment to the poor.
Seventeen years later I fully expect a Republican Governor or two to declare in their state of the state address, “the era of small government is over”. Because again and again, Republican governors and legislatures are preempting and abolishing the authority of communities to protect the health and welfare of their communities.
*Earlier this year Wisconsin passed a law eliminating the authority of cities villages and counties to require public employees to live inside city limits, which also voids any existing requirements.
*A few weeks ago Kansas passed a law prohibiting cities, counties, and local government units from requiring private firms contracting with these governments to provide higher compensation than the state minimum wages or require other benefits and leave policies.
*The Florida House recently voted to preempt local governments from enacting “living wage” laws and “sick time” ordinances. If signed into law, the bill also overrules counties like Miami-Dade and Broward that have “living wage” ordinances that require companies that contract with the county to pay wages higher than the federal minimum wage, and sometimes provide certain benefits.
According to the Institute for Local Self-Reliance, 19 states severely restrict or outright abolish the right of local governments to build their telecommunications networks. Cities began building their own networks after years of begging private phone and cable companies to upgrade their inadequate infrastructure, moderate their continual price increases and improve their customer service. When cities proved to be serious and successful competitors, telecommunications firm, rather than responding to the competition, went to state legislatures to abolish it. Last year North Carolina became the latest state to join the ranks of those who refuse to allow communities to make their own decisions about their own affairs.
Freedom for Unrestricted Fracking
Several years ago the federal government abdicated responsibility for regulating fracking. The Safe Drinking Water Act mandates federal regulation of underground injection activities in order to protect groundwater sources. But in 2005 Congress amended the definition of “underground injection” to specifically exclude “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”
In November 2010 Pittsburgh became the first city in the nation to ban fracking within city limits.
In February 2012 the Pennsylvania legislature responded by passing Act 13, a law that allows fracking in all parts of the city, including residential neighborhoods, which in essence abrogates the right of cities to exercise traditional zoning powers to protect residential neighborhoods from noise and odors and industrial dangers.
In mid-2012 Longmont, a suburb of Denver strengthened its oil and gas regulations. The Colorado Attorney General filed a complaint in court. In response activists successfully got the question put on the ballot. In November 2012 Longmont voters approved the measure with almost 60 percent of the vote. The Attorney General sued. And Democratic Governor John Hickenlooper announced the state would sue any and every city or county that followed the lead of Longmont.
In each of these cases one could argue about the legislation these communities want to enact. In hundreds of communities over the past decade such arguments have taken place, vigorous debates about the appropriateness of residency requirements, or living wage ordinances or fracking restrictions. Communities have gone both ways on these issues. But I would argue that they should have the right to make the decision for themselves. For it is at the local level where those who feel the impact of the decision have the biggest opportunity to be involved with making the decision. Certainly when it is a question of how to spend local taxpayers’ money, or what kinds of commercial activities to allow within residential areas of a city, the community itself should be the locus of decision making and state legislatures should as much as possible respect the outcome.
Cities in Constitutional Limbo
The U.S. Constitution specifically discusses the authority of the federal government and the states. It does not mention municipalities. For that matter, neither does it mention private corporations. Yet after the Civil War, as businesses became more powerful courts gave corporations personhood and dramatically expanded their rights in the face of local and state regulation. At the same time the courts severely redefined cities as mere appendages of the state and restricted the authority of municipalities to govern their own affairs.
For many courts, John Forrest Dillon’s 1872 book Municipal Corporations remains a guidebook for judicial decisions. In an 1868 case, Judge Dillon famously declared, “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.”
Hundreds of U.S. court decisions to the present day have employed the Dillon Rule to determine the scope of municipal powers and rights. In 1907, for example, the U.S. Supreme Court upheld the power of Pennsylvania to consolidate the city of Allegheny into the city of Pittsburgh, despite the wishes of the majority of Allegheny residents.
Beginning about 1920, increasing citizen dissatisfaction at their communities’ servile legal status led states to amend their constitutions to include home rule provisions that broadened the power of cities to govern their affairs. In 1961, for example, the Kansas Constitution was amended to provide that “cities are hereby empowered to determine their own local affairs…” It remains to be seen whether Kansas courts will conclude that deciding how to spend local taxpayers’ money is a “local affair”.
The U.S. Supreme Court has rarely come down on the side of local authority. The 1996 Telecommunications Act was justified by Congress as a way to increase competition. The law specifically allowed the federal government to preempt state and local regulations “prohibiting the ability of any entity” to provide telecommunications services. In 1997 Missouri passed legislation that prohibited cities from providing telecommunication services. The Missouri Municipal League asked the Federal Communications Commission to nullify the state law. The FCC refused to do so because it viewed municipal governments much the way John Dillon did in the 1870s. In 2004 the Supreme Court, by an 8-1 decision, upheld the FCC’s ruling that municipalities “are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion.”
Last August a Pennsylvania court went in the other direction by overturning Act 13 concerning fracking in a 4-3 decision that found the law in violation of the state constitution by invalidating many existing municipal zoning requirements The Pennsylvania Attorney General has appealed. The Pennsylvania Supreme Court is reviewing the decision.
Government Near the People
Local government is the most accessible of all governments, the most responsive to the popular will. Alexis De Tocqueville described local government as “the great school of democracy”. If we don’t like what our city council or county commission does we can throw the bums out. And kicking them out is not very difficult. Most local elected officials serve for only two years. Running for local office is within the means of many citizens, unlike running for federal or even statewide office.
There is a clear case for higher level intervention is when a community’s majority tyrannizes its minority. Constitutionally protected civil liberties, for example, demand intervention by states. But when it comes to how a city spends its money, or what kinds of commercial activities it allows within its borders, the burden of proof should rest heavily on the state government to explain why it should be allowed to intervene in local affairs.
Republican lawmakers in Florida defend their bills forbidding local minimum wage and living wage laws as a way to prevent the state from having a “patchwork” of laws across its 67 counties. “This bill provides consistency with regards to benefit packages across the state,” said Rep. MaryLynn Magar (R-Tequesta). “It levels the playing field.” But consistency is a poor excuse for undermining a fundamental principle of democracy. Indeed, one of the compelling reasons for allowing local control is the innovation and learning experiences that result from a diversity of local initiatives.
Intervention by local governments to protect communities against the predations of private corporations makes sense. The more remote decision makers are from the community affected by a decision, the less likely they will hear citizens’ concerns. This creates a more unequal the public-private power balance. Large corporations have a much easier time persuading higher levels of government, which are farther removed from the people and issues involved, and also more in need of campaign contributions.
Corporations are legally prohibited from putting the interests of the communities they serve above the maximization of profits to their shareholders. And within corporations, power is determined by the number of shares owned, unlike in a political democracy where one person has only one vote.
There has been much written about the federalist nature of the American political system. But virtually all of it focuses on the rights of states vs. the federal government. At this historical moment, where the last bastion of true democracy is at the local level, we need to extend the debate to include the rights of communities vs. the states.