Right now, there are two bills filed in the Florida legislature that propose sweeping new restrictions on local governments. One (House Bill 17) would bar them from regulating “businesses, professions, and occupations,” the other (SB 1158), would expressly preempt “the regulation of matters relating to commerce, trade, and labor.” The broad language of the bills has local advocates up in arms and newspapers like the Naples Daily News asking whether “local regulations [are] a thing of the past.” The legislative session to discuss and advance the bills began March 7.
Though egregious, what may be most noteworthy about the bills is how ordinary they actually are. Bills like them have become commonplace in the United States.
Local governments have become a battleground, and corporate interests seeking to dampen their influence have been proposing and passing bills like these for years. Countless local minimum wage hikes, worker protection bills, rent laws, police oversight initiatives, fossil fuel extraction bans and other progressive reforms have passed across the country since 2008. In Florida, local ordinances on wage theft, expanded paid leave, fracking, gun regulations and more have been central to the left’s platform. Now more than ever, going local has become a key way to make gains and resist — especially under Trump.
In response, corporate and right-wing interests have used their disproportionate (and often gerrymandered) control over state legislatures to pass “state preemption” bills like HB 17 and SB 1158 to quell local activism. Increasingly, the basic powers of local governments are becoming a keystone in the fight over a slew of issues, including the maintenance of democracy itself.
As “preemption” spreads and becomes all the more encompassing — or in other words, as more states remove specific or broad powers from local governments — it is beginning to smother basic elements of local democracy. “Home Rule,” which exists to safeguard an assumption of power for local governments, is being silently reversed.
Home Rule powers for municipalities were won decades — and in some states, a century — ago through state constitutional amendments spearheaded by the “Progressive Era.” With Home Rule, localities enjoy a presumption of power, which means that if the state is silent on an issue, municipalities can fill the void. Without Home Rule, all their powers have to be explicitly granted to them by the state, as was the case in Florida, before voters approved a Home Rule amendment in 1968. Municipalities were wards of the state. Home Rule tried to reverse that.
However, nothing in the Home Rule amendments placed a check on the state’s authority to unilaterally restrict and weaken Home Rule powers. For example, HB 17 and SB 1158, if passed, would rein in powers the 1968 Florida amendment won for municipalities. As the Florida League of Cities warns, “The bills would return Florida to a time when redress of local problems depended on a statewide body [the legislature] that took official action only once a year and from hundreds of miles away.”
For years this loophole has been exploited, across the country. Lobbies like the American Legislative Exchange Council (ALEC), a leading force behind state preemption, and their allies have made it their business to chip away at Home Rule. Now, in 2017, the limits on Home Rule are becoming so far-reaching that Home Rule itself is at risk of being reversed. HB 17, for example, prohibits localities from regulating businesses, professions or occupations unless “expressly authorized by general law.”
This reversal of whose power enjoys the benefit of the doubt — the state’s power or local power — is a direct echo of a legal doctrine called “Dillon’s Rule,” which treats municipalities as “children” of the state. The 1907 US Supreme Court decision Hunter v. Pittsburgh gave credence and widespread legitimacy to the doctrine. “Municipal corporations,” the court wrote, “owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which it cannot exist.” Under Dillon’s logic, the state enjoys the benefit of doubt.
Not surprisingly, in January 2016 the American Legislative Exchange Council’s American City County Exchange (ACCE) — created to push local free-market reforms like municipal right-to-work — released a paper in defense of Dillon’s Rule. “Local governments,” they wrote, “are tenants of the state.”
Despite the ramifications of Dillon’s Rule’s supremacy in fights like those raging in Florida and across the country, much of the left’s response to the doctrine remains largely stalled by a dated understanding of local authority. Often, the debate about how much power local governments should have leads to conversations about the dangers of total “local control” on the one hand, and the dangers of an unchecked federal or state government on the other. The conversation typically stalls there, and falls short of a more complex vision for local governments, where neither the municipality nor the state has total control. As a result, the left has largely clung to Home Rule, even as Home Rule itself has been subverted.
ACCE actually has a more accurate understanding of Home Rule — which might be one reason the left has been so ill-prepared in its response to state preemption. Although Home Rule gives localities authority to make a range of decisions and Dillon’s Rule creates a framework where local governments can only legislate when the state has explicitly allowed them to, ACCE understands that, “the two are not mutually exclusive.” Home Rule exists within Dillon’s Rule.
As we see in states across the country, Home Rule does not guard against state-imposed “emergency management,” or sweeping preemption bills that remove essential local powers. The material impacts are clear for millions of Americans fighting for higher wages and better living conditions. Unlike the left, however, ACCE understands how Home Rule is compatible with the dominant Dillon’s Rule, because there is no limit to the restrictions states can place on Home Rule.
The left’s responses to the attacks on local democracy have largely failed to address these structural realities. Moving beyond a (justified) outrage over preemption has proven difficult. Alternatives to the conditions that give rise to the preemption are largely neglected.
The best defense is a good offense. So, what might a strong offense look like for local governments?
Local self-determination has been a demand of Native nations, liberation struggles and neighborhoods for years, decades and centuries. Now, these dormant demands are gaining mainstream recognition. A central demand of the Standing Rock Sioux is self-determination and sovereignty. As Betsy DeVos takes the helm of the US Department of Education, state takeovers of elected school districts will likely spread, prompting education justice groups like the Journey for Justice Alliance to elevate age-old demands for “community control of schools.” In several states, the efforts of the Community Rights Movement to advance a new relationship between states and local residents, which takes into account basic protections for local self-governance, are similarly gaining recognition.
Back in Florida, preemption is emerging as a core political issue. The new organization #DefendLocal, sparked by opposition to preemption of local gun control laws, is spearheading a coalition to “send a message to [their] state lawmakers that local communities want local solutions to local problems, not more heavy-handed state government.” The alliance spans a wide range of advocacy groups: SEIU Florida, Equality Florida, Florida Immigrant Coalition, The Florida Center for Fiscal and Economic Policy, Florida National Organization for Women, ReThink Energy Florida and others are all “partner organizations.”
It’s not clear what the coalition will turn into. What is clear, however, is the historic opportunity for the demand for local self-determination — both as an end and a means to unite the many movements currently restricted by the Dillon’s Rule paradigm.
Across the board, local self-determination is becoming a central demand of the grassroots and the American public in general. It is no secret that the centralization of political power is a root cause of broad political disillusionment. So it may not matter that the left as a whole currently lacks a clear, robust, alternative vision for local self-government in the 21st century. Calls for self-determination resonate with many people in the US and whispers of a vision for local self-determination are beginning to emerge and gain traction from the ground up.