21st Century Cities Symposium Explores Impact of Preemption on Local Policymaking and What Cities Are Doing to Push Back

By Mike Alfano, Campaign Director, Campaign to Defend Local Solutions

In early December, I had the privilege to moderate a lunch panel at the 21st Century Cities Symposium. I was joined by Mayor Paul Soglin of Madison, Wisconsin, Mayor Pro Tempore and City Councilmember Jillian Johnson of Durham, North Carolina, City Attorney Anne Morgan of Austin, Texas, and Jon Vernick, Professor of Health Policy and Management at Johns Hopkins University.

We had the ominous job of casting a cloud over a morning spent learning of innovative and cutting-edge local policies aimed at tackling the challenges of economic segregation and confronting violence in our communities.

That cloud has been spreading in states across our country for some years, but now, it’s building to a thunderstorm.

The storm has a name: Preemption.

What are the challenges?

As Jon Vernick highlighted on the panel, preemption was intended to set minimum standards, and there have been instances where preemption has been used to benefit citizens. For example: states may use it to require that local communities adhere to baseline protections against discrimination or ensure that there’s a minimum threshold for wages across the state.

But in recent years, preemption has been used to stifle innovative policymaking aimed at improving the quality of life for local communities, often blue cities in red states – shifting from being used as a floor to being used as a ceiling for local policies.

In just the last two years, 15 states have passed 28 laws preventing cities and counties from enacting ordinances requiring higher minimum wages, paid leave, fair scheduling, or prevailing wages/project labor agreements. Twenty-five states preempt local governments from raising minimum wages in their local communities, despite evidence that higher wage laws deliver increased wages with little to no negative effect on business growth.

In many cities trying to raise wages like St. Louis, African-American workers are earning $0.80 for every $1 that their white co-workers earn. The Missouri legislature, however, recently voted to preempt local wage laws, which resulted in lowering the minimum wage in St. Louis by $3/hour. That’s shocking.

In 43 states, local governments have been prevented from passing local regulations concerning firearms. In some cases, these laws include harsh punishments allowing special interest groups to sue local officials, or even send them to jail, for voting to pass local laws aimed at reducing gun violence.

I’m not kidding. In Kentucky, a local elected official can be sentenced to a year in jail — just for voting to keep their residents safe from gun violence. These punitive laws are known as super-preemption.

The examples provided by our panelists from their own communities drove the message home: whether it’s Texas, North Carolina, or Wisconsin, local attempts to protect vulnerable populations, promote affordable housing and address inequality, and develop and govern their communities in sustainable ways to attract and retain Fortune 500 companies are under assault.

How do we fix this?

So, is it all doom and gloom? Are cities and local policymakers powerless to stand up to these state over-reaches? Far from it. Our panel offered some ideas for combating these intrusions into local policymaking.

Legal challenges are one of the chief ways that cities and counties can confront over-reaching, unconstitutional preemption laws. In response to the Texas legislature passing a sweeping super-preemption of sanctuary cities policies, Austin joined a lawsuit along with many other Texas cities that succeeded in blocking some provisions of the law taking effect. Cleveland recently scored an Appellate victory, overturning state preemption of their local hiring law. Coral Gables, Florida, is fighting to uphold a victory overturning state preemption of polystyrene (i.e. Styrofoam) bans. And Tallahassee, Florida, defeated an effort seeking to punish the city for refusing to repeal laws banning the shooting of guns in public parks. Fighting preemption that extends beyond constitutional bounds in the courts is a key tool for cities to wield.

We need to educate the public about preemption trends across the nation. My organization, the Campaign to Defend Local Solutions has taken up the charge, building a coalition of everyday people from over 40 states, including more than 50 local elected officials and 15 national and state-based organizations. By working together across issue silos, and across jurisdictional boundaries, we are stronger together in bringing light to this encroachment on local democracy.

Local policymakers, of course, have a role to play as well. Mayor Pro Tem. Johnson shared a technical, but important example of the cat-and-mouse game that has been created by state preemption. The city of Durham sought to increase fees for mandated inspections of work performed by utility companies and their contractors. The increased inspection fee would serve as an important revenue source, allowing the city to recover the full cost of scheduling, planning, and performing a significant uptick in inspections as more companies were installing fiber optic cabling to expand the city’s broadband network.

The state’s General Assembly, however, stepped in to prevent Durham from increasing the inspection fee by passing a statewide law prohibiting localities from charging companies any more than the cost of an inspector’s time on site performing the inspection. The state preemption law has a significant impact on localities’ ability to recover their full costs for performing inspections. As local innovators so often do, a workaround was found: the city of Durham now outsources these inspections to third-party contractors that are not subject to the state’s inspection fee law, saving the city huge amounts of time and money.

We also need more research, both from academics and from advocates fighting in the trenches. Data, toolkits, reports, and infographics on preemption all serve to add support to an apparently radical notion to some at the state level: cities and counties — our local labs of democracy and policy innovation — should be allowed to do their work, free from state interference.

Finally, as Mayor Soglin pointed out, those of us working to improve conditions at the local level need to make the public aware of these conflicts and how they are stifling innovation and progress.

What’s on the horizon?

Unfortunately, we can expect increased attacks on local policies, both in number and in severity.

Last year, we saw in Florida the most broad preemption bill ever filed (HB 17), which would have preempted any business regulation by cities or counties, unless the state legislature authorized it. Wisconsin is currently dealing with a very broad bill that would preempt cities and counties on a host of employment issues. Sanctuary city preemption laws that carry significant penalties are also moving in a number of states, including Florida.

But there are increased efforts to stand up to these attacks. In the coming months, expect a flurry of resources to come from national groups. Those who are concerned about preemption overreach are more organized, coordinated, and resolute than ever before.

So, while the cloud of preemption may be looming, the winds of defending local solutions are working to keep the storm at bay.

Highlight Video From the Panel

To view the entire video of the panel, click here.

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