Many Cities Are Creating Policies Apart from Their States
A number of cities are enacting measures that have conflicted with or gone beyond state laws.
Republicans have seized their largest state lawmaking majorities since the 1920s, but many Democratic-dominated cities are likely to take matters into their own hands this year by passing progressive measures that go beyond or even conflict with state laws.
On issues ranging from the minimum wage to fracking to drones, a number of cities acted on their own in 2014, and the trend is expected to continue—even in states where Democrats control state government. Meanwhile, some states are pushing back by barring local governments from adopting such measures.
“I think the cities have the political will and consensus to move when the federal government and the state may be paralyzed or polarized,” said James Brooks, city solutions director for the National League of Cities. “City leaders are implementing the things citizens seem to want, and voters seem to be supportive of all of this.”
Some cities are pushing beyond state law even in Democratic states. But the tension is particularly high in states where Republicans control state government but the big cities are heavily Democratic.
Republicans will be in charge of 68 of 99 state legislative chambers and 31 governorships in 2015. But of the 15 largest cities, 11 voted for President Barack Obama in 2012. More than 53 percent of voters living in metropolitan areas with more than one million people supported Obama, while 45 percent voted for Republican Mitt Romney.
Jocelyn Johnston, an associate professor at American University’s School of Public Affairs, said that many cities are embracing progressive policies because states just aren’t on the same wavelength.
“Urban areas can’t go to the legislature to get their voice heard,” Johnston said, “so they’re going to do something in-house. That’s why this is happening. Most state legislatures are not as liberal as urban interests are.”
In the past two years, for example, Austin, Texas, banned plastic shopping bags, Lincoln, Nebraska, said no to police drones, and Philadelphia became the largest city in the nation to decriminalize small amounts of marijuana. Texas is dominated by Republicans, Nebraska’s legislature is heavily conservative (though officially nonpartisan) and Pennsylvania Republicans held the governor’s office and the legislature at the time Philadelphia passed its ordinance.
Labor issues have prompted many of the city-state clashes—and not only in Republican-dominated states.
For example, more than a dozen cities have passed measures mandating sick leave for people who work in the private sector. Seattle, Portland (Oregon) and Jersey City, which are located in states where Democrats either control state government or parts of it, were among them.
A growing number of cities also are enacting their own minimum wage laws, even when states have boosted theirs beyond the federal level. Twenty-nine states and the District of Columbia now have minimum wage laws that set a higher rate than the federal $7.25 an hour, according to the National Conference of State Legislatures (NCSL). Nearly half were enacted during 2014, either by legislatures or ballot issues.
Take California, where Democratic Gov. Jerry Brown signed a law in 2013 incrementally raising the minimum wage from $8 to $10 an hour by 2016.
In November, San Francisco voters approved a ballot measure gradually bumping the minimum wage from $10.74 to $15 an hour by July 2018. Oakland voters overwhelmingly approved setting the minimum wage at $12.25, starting in March. And this past summer, the Richmond city council adopted an ordinance that ultimately raises the minimum wage to $13 an hour by 2018.
Last year, the Seattle City Council enacted an ordinance to boost the minimum wage to $15 an hour over three years — the highest in the nation — even though Washington state’s rate already was set at $9.32 an hour.
And in Illinois, voters approved a nonbinding referendum in November to raise the minimum wage from $8.25 to $10 an hour. But in Chicago, the city council went even further and voted last month to gradually hike the rate to $13 an hour by 2019.
In 2015, more cities are expected to join the fray. Activists in Los Angeles and Philadelphia are gearing up minimum wage campaigns.
Supporters say that it makes sense for cities to raise the minimum wage because the cost of living is often much higher in them than in other parts of a state. They argue that they have a better chance of success on the local level, rather than waiting for Congress to step up, given the gridlock in Washington, D.C.
But some critics say that cities that substantially raise the minimum wage on their own are only hurting small businesses and putting more strain on a fragile economy.
“Costco can probably absorb that. But the mom-and-pop bakery, not so much. It’s not a thoughtful approach,” said Jon Russell, director of the American City County Exchange, which is part of the American Legislative Exchange Council (ALEC), a free-market think tank that drafts model legislation.
One heated battle between cities and states is over fracking, a controversial method of extracting natural gas stored in shale deposits by injecting a high-pressure mixture of water, chemicals and sand or gravel into wells.
While states usually have regulatory authority over fracking, some local governments have recently asserted that they have that ultimate decision-making power. Some say it’s a zoning and land use matter that involves potential traffic, pollution and water quality issues and therefore is within their bailiwick. Others contend that a community has an inherent right to local self-govern.
In Ohio, a state that supports fracking, the cities of Athens and Oberlin are among dozens of communities that have prohibited it.
And in the strongly pro-fracking state of Pennsylvania, where officials estimate that gas drilling accounts for nearly 229,000 jobs, more than a dozen communities, including the city of Pittsburgh, have banned the practice.
Even in oil-dominated Texas, the college town of Denton banned fracking after voters approved the measure in November. Within a day after the election, state officials filed a lawsuit challenging the initiative, arguing it was unconstitutional. That case and another filed by the oil and gas industry are pending.
Ronald White, director of regulatory policy for the Center for Effective Government, a nonprofit watchdog group, said cities and small towns are taking action because they don’t believe fracking can be done in a way that protects natural resources and water quality.
“They’re saying that we have the right as a community to decide that we don’t want this in our area,” White said. “There has been pushback from industry and in some cases, state government. There have been legal challenges. I think we’re going to see more of this.”
Carolyn Berndt, the National League of Cities’ program director for sustainability, said that courts in Pennsylvania and New York have upheld local governments’ authority to use zoning codes to determine where fracking can be done.
“Multiple cities signed on to the court cases and won,” Berndt said. “Those are big wins for local government. It’s protecting the cities’ ability to make land use and zoning decisions within their borders.”
The fracking wars will continue into 2015, predicted Daniel Fiorino, director of the Center for Environmental Policy at American University’s School of Public Affairs.
“Republicans now control a lot of state legislatures, so you’re probably going to see a lot of states being open to fracking, but I think some local areas will be pushing back,” Fiorino said. “We’re going to see litigation and political conflict in 2015 over that issue.”
States Push Back
As cities increasingly institute liberal laws, some state legislatures have been fighting back. They’ve passed their own laws barring local governments from enacting certain measures.
These preemption laws limit or prohibit local action on everything from fracking to broadband network expansion to capping soda sizes.
“The states represent suburbs, exurbs and rural areas, as well as the core cities,” said Joel Kotkin, director of the Center for Demographics and Policy at Chapman University in Orange, California. “They preempt because the business interests in these areas are concerned they are going to be fighting endless battles with local jurisdictions.”
For example, 11 states have passed laws preempting local governments from mandating paid sick days for private workers, among them Florida, Arizona and Wisconsin, according to the National Partnership for Women & Families, a nonprofit advocacy group.
“The language we often hear is that the states need uniform standards. But the legislators really want a uniform standard of nothing,” said the group’s vice president, Vicki Shabo. “This is a coordinated strategy of big businesses and trade associations.”
Fifteen states also have passed legislation prohibiting local governments from adopting their own minimum wage laws, according to NCSL.
Oklahoma’s legislature gave the thumbs up to a preemption law last year, prohibiting local governments from hiking the minimum wage above the state level of $7.25 an hour. At the time, the issue was being hotly debated in Oklahoma City, where activists had launched an initiative to raise the rate to $10.10 an hour.
In signing the preemption bill, Oklahoma Republican Gov. Mary Fallin said in a prepared statement: “Mandating a minimum wage increase at the local level would drive businesses to other communities and states, and would raise prices for consumers.”
Oklahoma Republican state Sen. Dan Newberry said he sponsored the preemption bill because he thought that it was bad policy to have cities creating their own minimum wage laws, when it should be up to the state.
“To have fractured standards across the state is not a strong economic model,” Newberry said. “If one city has a minimum wage of $9 and an adjacent one has one at $7, you may see businesses migrate from the higher cost area to the lower cost one. It would have a negative effect on the cities.”
Preemption supporters also argue that cities are overstepping their authority and that having a patchwork of regulations throughout a state makes it onerous for businesses.
The American City County Exchange’s Russell said that his group, like ALEC, where it is housed, opposes cities taking such action as raising the minimum wage and prohibiting fracking, in defiance of the states. “We feel that hurts free markets and free enterprise,” he said.
“A lot of people in local governments perceive themselves as having more power than they really do have,” said Russell, who is also a town councilman in Culpeper, Virginia.
Conservative states aren’t the only ones passing preemption measures.
In the blue state of Rhode Island, where the legislature raised the minimum wage to $9 an hour last year, Democratic lawmakers successfully inserted an amendment in the state budget that forbade local governments from paying a minimum wage different from state or federal law. At that time, the Providence city council was considering a union-backed ordinance to raise the minimum wage to $15 an hour for workers at large hotels.
Critics say that state preemption laws, which also have focused on public health issues including smoking, fast food and gun regulations, are bad news for cities.
Michael Pagano, dean of the College of Urban Planning and Public Affairs at the University of Illinois at Chicago, said that states are turning to preemption because legislators don’t trust the decisions made by local governments or appreciate their autonomy.
“If the states are squeezing local autonomy so that cities and counties have no decision-making authority, then why have local elected officials at all, if they have no power?” Pagano said.
But ALEC and many other industry groups beg to differ.
“The power not given to the federal government resides with the states,” said the American City County Exchange’s Russell. “When states set a precedent, it’s beneficial. That way you don’t have this helter-skelter with different subdivisions in the states passing legislation that is detrimental to the free market.”
Russell said that many of the progressive measures that cities are adopting are actually being pushed by outside groups with an agenda, such as labor unions and environmental organizations, and are cropping up in major urban centers or university towns.
“There’s definitely a correlation there,” he said. “You can recruit a lot of college students to do your picketing.”
Both sides expect protracted preemption skirmishes between cities and states this year.
“I think you’ll see more preemption in 2015 on different issues. It depends on who controls the legislature and what the issue is,” Russell said. “If a state looks at it as detrimental to its economic health – that it’s hurting business and job development – more preemption will take root.”
Joel Rogers, a law professor at the University of Wisconsin-Madison and director of COWS (formerly the Center on Wisconsin Strategy), a progressive public policy think tank, agrees that states will step up their preemption efforts, given the results of the 2014 elections.
“I think that in 2015, they will try to preempt more stuff that cities will want to do that is good for the environment or workers,” Rogers said. “It’s going to be a very big fight.”
Ultimately, it boils down to a question of independence, said the University of Illinois’ Pagano.
“States are sovereign. Local governments are not. States can impose on local governments what they wish,” he said. “The policy issues change year to year, but underlying all of this is the question of how much local autonomy does the state feel it ought to tolerate?”