For Release Thursday, May 9, 2013
In 1996, Democratic President Bill Clinton famously declared, “The era of big government is over.” He deregulated the telecommunications and financial industries; pushed a free trade agreement that severely restricted the federal government’s authority to protect domestic jobs and businesses; and abandoned the 75-year-old federal commitment to the poor.
Now, 17 years later, I fully expect some Republican governors to declare, “The era of small government is over.” Again and again, Republican governors and legislatures are pre-empting and abolishing the authority of communities to protect their residents’ health and welfare.
- Earlier this year Wisconsin passed a law eliminating the authority of cities, villages and counties to require public employees to live inside city limits.
- A few weeks ago Kansas enacted a law prohibiting cities, counties and local government units from requiring private firms that contract with them to pay more than the state minimum wage or to require other benefits and leave policies.
- The Florida House recently voted to pre-empt local governments from enacting “living wage” and “sick time” ordinances. It would overrule counties, like Miami-Dade and Broward, which require companies they contract with to pay wages higher than the federal minimum wage.
According to the Institute for Local Self-Reliance, 19 states severely restrict or abolish the right of local governments to build their telecommunications networks. Cities began building their networks after years of begging private phone and cable companies to upgrade inadequate infrastructure, moderate price increases and improve customer service. When cities proved successful competitors, telecommunications firms went to state legislatures to abolish the practice. Last year North Carolina became the latest state to bar communities from making their own decisions on these matters.
Freedom for unrestricted fracking
Several years ago the federal government abdicated responsibility for regulating hydraulic fracturing, or fracking. The Safe Drinking Water Act mandates federal regulation of underground injection activities to protect groundwater sources. But in 2005, Congress amended the definition of “underground injection” to specifically exclude “hydraulic fracturing operations related to oil, gas, or geothermal production activities.”
In November 2010, Pittsburgh became the first U.S. city to ban fracking within city limits.
In February 2012, the Pennsylvania legislature passed a law allowing fracking in all parts of the city, in essence abrogating cities’ traditional zoning powers to protect against noise, odors and industrial dangers.
Last year the Denver suburb of Longmont strengthened its oil and gas regulations. The Colorado attorney general went to court. In response, activists successfully put the question on the Longmont ballot, and it passed last November with 60 percent in favor. The attorney general sued, and Democratic Gov. John Hickenlooper announced the state would sue any city or county following Longmont’s lead.
In each of those cases one could argue for or against the communities’ decisions. But they should have the right to decide for themselves. It is at the local level where those who feel the impact of such decisions have the biggest opportunity to help make them. With questions of spending local taxpayer money, or what commercial activities to allow in residential areas, the community itself should decide. State legislatures should – as much as possible – respect the outcome.
Cities in constitutional limbo
The U.S. Constitution specifically discusses the authority of the federal government and the states. It does not mention municipalities. For that matter, neither does it mention private corporations.
Yet after the Civil War, as businesses became more powerful, courts gave corporations personhood and dramatically expanded their rights. At the same time, courts severely redefined cities as mere appendages of the state and restricted their authority to govern their own affairs.
Iowa jurist John Forrest Dillon’s 1872 book Municipal Corporations remains a guidebook for many judicial decisions. In an 1868 case, Dillon famously declared, “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.”
Hundreds of court decisions since have used the “Dillon Rule” to determine municipal powers and rights. In 1907, for example, the U.S. Supreme Court upheld Pennsylvania’s power to consolidate the city of Allegheny into the city of Pittsburgh, regardless of Allegheny residents’ wishes.
Beginning about 1920, rising citizen dissatisfaction led some states to amend their constitutions to broaden cities’ powers. In 1961, for example, the Kansas Constitution was amended to provide that “cities are hereby empowered to determine their own local affairs. …” It remains to be seen whether Kansas courts will view decisions on how to spend local taxpayers’ money as a “local affair.” (The U.S. Supreme Court, however, has rarely sided with local authority.)
Government near the people
Local government is the most accessible of all governments, the most responsive to popular will. If we don’t like what our city council and county commission do, we can throw the bums out. And running for local office, unlike federal or statewide office, is within the means of many citizens.
Higher-level intervention is clearly needed when a community’s majority tyrannizes its minority, or when civil liberties are at risk. But for questions of how a city spends its money or what commercial activities it allows, the burden of proof should rest heavily on the state to explain any intervention.
Republican lawmakers in Florida defend their attempt to forbid local wage laws as a way to prevent a “patchwork” of laws across 67 counties. But consistency is a poor excuse for undermining a fundamental principle of democracy.
Much has been written about the federalist nature of the U.S. political system. But virtually all of it focuses on the rights of states vs. the federal government. At this historical moment, where the last bastion of true democracy is at the local level, we need to extend that debate to include the rights of communities vs. the states.
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