How Preemption is Expanding and Changing in 2019

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During the 2019 legislative sessions, state lawmakers again passed preemption laws limiting local power, including authority over minimum wage, regulation of e-cigarettes and local contracting powers.

This, according to a new report from the Local Solutions Support Center and State Innovation Exchange entitled “The Growing Shadow of State Interference,” highlights the work of 2019 state legislative sessions to further limit local decision-making.

The report explores multiple preemption trends, including further attacks on core local powers and the use of “new preemption” to deliberately and broadly stop local regulation. It also analyzes why we have seen a rise in such laws over the course of the last decade. While the report explores specific policy areas, and offers illustrative rather than encyclopedic tracking, it serves as a great resource for updating the field of preemption.

Core Local Powers

Cities have a multitude of responsibilities. But there are some basic domains that are the foundation, or “core,” of local governance, such as zoning, budgeting and administering local elections. Yet, 2019 saw continued state interference on these domains, severely limiting the ability of municipalities to serve their basic functions.

Take, for example, Florida. The state enacted term limits on local school boards, requirements that local public school funding initiatives provide funding for charter schools; and severe restrictions on the ability of municipalities to enact inclusionary housing policies.

New Preemption

Beyond limiting core local powers, many state legislatures are seeking to unnecessarily punish or burden local officials, something Columbia law professor Richard Briffault calls “New Preemption.”

Florida HB829, enacted this year, requires courts to saddle local governments with legal fees and costs if an ordinance is found in violation of a preemptive law. Since 2016, Arizona has held the threat of fines over local officials for enacting certain ordinances. Arizona strengthened its grip in 2019 by requiring any minimum wage increase be accompanied by the local government paying for associated costs.

2019 and Beyond

There are several reasons why preemption is on the rise in 2019.

According to the report, since 2010, corporations have been able to pump money into state elections, seeking to curb minimum wage increases or local regulations of ride-sharing apps. Additionally, the American Legislative Exchange Council – ALEC — has been developing and distributing anti-regulatory, pro-industry model bills to state legislatures across the country.  About one in every five ALEC bills that’s introduced becomes law.

While these actions to limit local decision-making continued in 2019, there were also unprecedented counter efforts. These include victories in Colorado to repeal minimum wage, tobacco taxes, and oil and gas preemption laws, and in Arkansas to repeal municipal broadband preemption.

Two key elements contributed to the success of the counter preemption trend: cross-issue coalitions and new champions.

In Texas, the Coalition Against State Interference (CASI) included groups as varied as the AFL-CIO, Faith in Texas, and the Sierra Club.

New champions included Mayor Bill Peduto of Pittsburgh and newly elected officials such as Governor Tony Evers of Wisconsin, and old actors who brought renewed vigor to the fights, such as the municipal leagues of Florida and Utah.

These recent legislative sessions may not have been as friendly to local governments as hoped, but with so many people and organizations joining forces to fight for our communities, there is certainly reason to view future sessions with more hope for local democracy.

Spencer-Wagner-smallAbout the authors: Spencer Wagner is a Local Democracy Associate with NLC’s Local Democracy Initiative. His research focuses on state preemption of local policy and its impacts.

 

haddowKim Haddow is the director of the Local Solutions Support Center (LSSC), a national hub that coordinates and creates opportunities to counter the misuse of preemption and strengthen local democracy.