Reclaiming Our Local Democracy

City Rights in an Era of Preemption (pdf)

In Chattanooga, Tennessee, the city is not permitted to extend its municipal broadband service to woefully underserved rural neighbors, despite widespread support from people who live there. The city of St. Petersburg, Florida, is prevented from regulating the plastic bags and drinking straws that litter their waterways and harm wildlife.

In every case, these cities have had their power to solve problems and improve their communities stripped away by their state representatives. These examples are not rare instances — across the country, state legislatures and courts are usurping city authority at alarming rates.

City Rights in an Era of Preemption, a new report released this week by NLC, indicates an increase in the number and severity of state preemptive measures against cities across seven policy areas: minimum wage, paid leave, anti-discrimination, ride sharing, home sharing, municipal broadband and tax and expenditure limitations. Our updated findings include 19 new laws that were passed over just the past year that will prevent local leaders from helping their communities.

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These increases in preemption are linked to lobbying efforts by special interests, the spatial sorting of political preferences between urban and rural areas and single party dominance in most state governments.

Taken together, the result is that many mayors and city council members are not able to respond to their constituents needs. Local citizens are losing a voice in how their communities are governed.

Fighting to restore local democracy is also getting harder. Some states are taking preemption even further with aggressive actions, or “chilling effects,” intended to completely shake cities and city leaders to their cores.

In Florida, a local official faces a $5,000 fine and removal from office for passing gun control ordinances that may run afoul of state law. Texas mayors who oppose a state-wide ban on sanctuary cities risk a $25,000 per day civil fine. And, perhaps most egregiously, Arizona can withhold all city sales tax revenue from municipalities that pass any ordinance judged to conflict with state policy. 

The political dynamic in some state courts can even make legal challenges a risk. Last year, the Kentucky Supreme Court reversed local minimum wage ordinances on the grounds that they violated home rule. In effect, state law became the ceiling up to which locals can legislate instead of the floor from which city leaders can fine tune to meet local needs.

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With this new found victory, the state legislature moved quickly to legislate that local governments “shall not have the authority to require any employer to pay an employee a certain wage or fringe benefit other than as determined by the employer.” A preemption debate that began with minimum wage ended with additional restrictions in the areas of paid sick leave and other benefits.

As state intervention increases, local leaders are being prevented from keeping people safe, expanding rights, building stronger economies and promoting innovation. Despite these uphill battles, mayors are not standing idly by. As part of NLC’s new Local Democracy Initiative, we hosted the first Mayors’ Institute on Preemption to equip city leaders with tools and strategies to prevent and reverse preemption through peer learning, evidence-based research and policy development.

Mayors from the cities of Little Rock, Arkansas, Orlando, Florida, St. Petersburg, Fl., Beaverton, Oregon, Flagstaff, Arizona, Columbia, South Carolina and Chattanooga, Tennessee, convened in Orlando, Florida, for the two-day Institute.

The mayors engaged with national experts who advised on advocacy strategies to help city leaders coordinate grassroots stakeholders; legal strategies to support interpretation of state legislation and court rulings, writing ordinances, and responding to lawsuits against the city; and communications strategies to help city leaders explain preemption to their constituents in ways that reflect the true threat to their livelihoods, safety, and security.

State legislatures have gotten more aggressive in their use of preemption in recent years. In the face of these threats, mayors are defending the needs and values of the people they serve and are standing together with a shared sense of duty to reclaim the basic principle of local democracy.

We stand with them.

Christiana_McFarlard_ready.jpgAbout the Authors: Christiana K. McFarland is NLC’s research director. Follow Christy on Twitter at @ckmcfarland.





Alex Jones is the manager of NLC’s Local Democracy Initiative, where his work focuses on unveiling the extent and effect of state intervention in city governance. Previously, he was a senior policy analyst at the Brookings Institution and strategic adviser to its Centennial Scholar Initiative.