• The Emerging Threat
    to Local Democracy

    and its Consequences

Cities have become a critical source of innovation across a wide array of policy areas that advance health, inclusion, equitable opportunity, and social justice. In recent years, cities and other local governments have taken the lead in tackling public health challenges, enacting minimum wage and paid sick leave policies, expanding the boundaries of civil rights, responding to emerging environmental threats, and advancing other important reforms. For America to progress, cities, counties, and towns must remain hubs of innovation and solutions testing. But the last seven years has seen an increase in the use of preemption to stop local lawmaking across a broad and growing range of issues.

The increasing use of preemption threatens to perpetuate racial and economic inequality, limit local anti-discrimination efforts, and systematically strip local governments of their power to regulate and set health, safety and economic standards. States now, with growing regularity, overturn the outcomes of municipal decisions and threaten to withhold funds from cities, and punish local officials who defy them.

National polling done for the LSSC shows that voters believe local communities know how to best meet the needs of the people and businesses who live there and that to solve problems, local governments must be able to determine the laws and set standards that reflect the unique views, values and needs of their citizens.

The New Operating Environment

Preemption is not inherently bad or good, nor is its use inherently partisan.  It is a tool, like the filibuster, that can and has been used by both political parties.  In the past, preemption has mainly occurred when a local law was found to be inconsistent with a state law. And historically, preemption has been used to advance well-being and equity. The federal Civil Rights Act of 1964, for example, allowed states and cities to increase protections, but prohibited them from falling below what was required under federal law. But, the present abuse of preemption threatens the fundamental ability of cities to act on the unique views, values and needs of their communities.

    • The number of preemption bills expressly prohibiting local laws has increased, and are now being used across a broader range of issues, including areas such as zoning, that used to be reserved for city oversight.
    • Preemption bills have become increasing hostile to the authority of cities and counties (known as “home rule”). States are increasingly introducing sweeping “blanket” preemption bills that seek to end local regulation of whole sectors of the government. According to the New York Times, “The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.”
    • Preemption is now being used to punish cities by cutting state funds and to threaten local officials with fines, removal from office or jail.

The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy – driven by corporate interests and very often orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization of state lawmakers and lobbyists.  Their strategy has succeeded at an alarming rate:

A Preemption Primer

We are worth more: raise the minimum wage

25 states

now preempt minimum wage laws

Women for Paid Sick Days22 states

preempt local paid sick days laws

Woman with headscarf holding children's hands before crossing streetAt least 10 states

have made it illegal for cities to refuse to help federal authorities detain and deport immigrants

41 states

prohibit local regulation of ride-sharing companies

Plastic Bag Ban

10 states

ban local plastic bag bans

Drug Free Gun Free School Zone43 states

limit local authority to regulate guns or ammunition

Rainbow flags in front of columns3 states

ban local anti-LGBTQ discrimination ordinances

Keep the Internet Open

20 states

ban local control over 5G technology

The state is now interfering on more policy areas:

  • Labor standards (minimum wage, paid sick time, wage theft, local hire, pensions, fair scheduling)
  • Civil rights (anti-discrimination, sanctuary cities, immigration)
  • Public health and safety laws (gun safety, e-cigarettes sales, food labeling, sugar-sweetened beverages)
  • Technology (broadband, 5G, self-driving vehicles)
  • Environmental protection (factory farming, plastic bags, Styrofoam, energy benchmarking)
  • Local zoning (fracking, inclusionary zoning, rent control)
  • Local taxes (tax and expenditure limitations)

Preemption is being now being used to:

Punish elected officials and cities

  • Preemption is now being used to punish cities by cutting state funds and to threaten local officials with fines, removal from office or jail.
  • The most punitive measures have focused on local efforts to regulate firearms or deal with undocumented immigrants.
  • One state – Arizona – has taken a punitive approach to all local laws subject to state preemption.

Overturn ballot elections

  • Tempe, Campaign Finance Disclosure Law, Passed 91% – 8% (2018)
  • Austin, Defeated UBER’s efforts to escape regulation: 56% – 44% (2017)
  • Nashville, Local Hire Law: Passed 57%-43% (2016)
  • Denton, Texas Fracking Ban: Passed 59%-41% (2015)
  • Milwaukee, Paid Sick Days: Passed 69% – 31% (2011)

Eliminate, in one “Death Star” bill, local control over broad swaths of wage and workplace standards

  • In one preemption law (House Bill 4052), Michigan prohibited any local ordinance that controls minimum wage, benefits, sick leave, union organizing and strikes, wage disputes, apprenticeship programs, and “ban the box” policies (blocking employers from asking about felony convictions). Wisconsin has taken a similar approach.
  • In 2017, Iowa preempted in one law (House File 295) all local ordinances on employment leave, hiring practices, employment benefits, scheduling practices, and other terms or conditions of employment. Beyond just wage and workplace standards, the law also included sweeping preemption on plastic bags and other containers made of a cloth, paper, plastic, and a range of other materials.

Perpetuate economic and racial inequity

Implement an anti-regulation agenda

  • The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy – driven by corporate interests and very often orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization of state lawmakers and lobbyists.
  • New preemption measures frequently outlaw local action on an issue, even when the state itself has no existing policy standard or regulation set in place. Increasingly, preemptive state laws are aimed at preventing any regulation at all.
  • States are increasingly passing sweeping preemption bills that seek to end local regulation of whole sectors of the government. According to the New York Times, “The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.”
  • In response to “oppressive” local control, states are using preemption to “rein-in local government.” Texas Governor Greg Abbott has called “for legislation that reduces, restricts and prohibits local regulations…I think a broad-based law by the state of Texas that says across the board, the state is going to pre-empt local regulations, is a superior approach.”

In every legislative session since 2011, local governments have lost more power. Some recent examples include:

  • In 2018, legislatures banned local sanctuary city ordinances which included punitive measures in Iowa, Tennessee and Virginia (vetoed by the Governor), barred cities in Pennsylvania and Hawaii from regulating the sale of tobacco products and e-cigarettes, passed sweeping preemption of Wisconsin’s labor laws and introduced a similar measure in Pennsylvania (HB861), which will be considered again on the fall.
  • Also, in 2018, the American Beverage Association strong-armed the California legislature into passing a preemption bill banning local soda taxes until 2030. In return, the industry group dropped its November ballot initiative that would have seriously weakened the ability of local communities to raise revenue for police, fire, transit and other public services.
  • Since 2017, four states have passed measures preempting local paid sick days ordinances without establishing any uniform state-level paid sick leave requirement: Arkansas, Iowa, Kentucky, and South Carolina. Three others – Maryland, New Jersey, and Rhode Island – have implemented statewide laws that guarantee workers a minimum amount of paid sick days but also preempt future local laws that might improve upon them.
  • Three states – Kansas, Oklahoma, and South Carolina – passed bills that exempted faith-based adoption and foster care agencies from participating in child placements that violate their religious beliefs. Laws like these can weaken any local nondiscrimination efforts and limit the ability of local governments from guaranteeing inclusive adoptions and placements.
  • This session also saw a broadening attack on the historic, basic powers of cities, including erosion of city powers to require certain standards from contractors (WI, AZ), to control their own elections (AZ) and to regulate zoning in the form of short-term rentals (multiple states).

National polling shows that voters value local democracy and trust local government more than any other level of government. According to the research, people believe local communities know how to best meet the needs of the people and businesses who live there and that to solve problems, local governments must be able to determine the laws and set standards that reflect the unique views, values and needs of their citizens.

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