States Are Blocking Local Laws, Often at Behest of Industry
Darren Hodges, a Tea Party Republican and councilman in the windy West Texas city of Fort Stockton, is a fierce defender of his town’s decision to ban plastic bags. It was a local solution to a local problem and one, he says, city officials had a “God-given right” to make.
But the power of Fort Stockton and other cities to govern themselves is under attack in the state capital, Austin. The new Republican governor, Greg Abbott, has warned that several cities are undermining the business-friendly “Texas model” with a patchwork of ill-conceived regulations. Conservative legislators, already angered by a ban on fracking that was enacted by popular vote in the town of Denton last fall, quickly followed up with a host of bills to curtail local power.
“The truth is, Texas is being California-ized, and you may not even be noticing it,” Mr. Abbott said in a speech at the Texas Public Policy Foundation, an influential conservative think tank, just before he took office last month. “Large cities that represent about 75 percent of the population in this state are doing this to us. Unchecked overregulation by cities will turn the Texas miracle into the California nightmare.”
His salvo caught Texas cities by surprise. But pre-empting the power of local governments is becoming a standard part of the legislative playbook in many states where Republicans who control statehouses are looking to block or overturn the actions of leaders, and even voters, in municipalities that are often more liberal.
So-called pre-emption laws, passed in states across the country, have barred cities from regulating landlords, building municipal broadband systems and raising the minimum wage. In the last two years, eight Republican-dominated states, most recently Alabama and Oklahoma, have prevented cities from enacting paid sick leave for workers, and a new law in Arkansas forbids municipalities to protect gays and lesbians from discrimination. Already this year, bills introduced in six more states, including Michigan, Missouri and South Carolina, seek to do the same. At least five states have pre-empted local regulation of e-cigarettes. And in New Mexico, the restaurant industry supports a modest increase to the minimum wage only if the state stops cities from mandating higher minimums.
Often these efforts are driven by industry, which finds it easier to wield influence in 50 capitols than in thousands of city halls, said Mark Pertschuk, the director of Grassroots Change, which opposes the pre-emption of public health measures.
The strategy was pioneered by tobacco companies 30 years ago to override local smoking bans. It was perfected by the National Rifle Association, which has succeeded in preventing local gun regulations in almost every state.
More recently, the restaurant industry is leading the fight to block municipalities from increasing the minimum wage or enacting paid sick leave ordinances in more than a dozen states, including Florida, Louisiana and Oklahoma.
“Businesses are operating in an already challenging regulatory environment,” said Scott DeFife, the head of government affairs for the National Restaurant Association. “The state legislature is the best place to determine wage and hour law. This is not the kind of policy that should be determined jurisdiction by jurisdiction.”
This year, a combination of big money in state politics and a large number of first-time state legislators presents an opportunity for industries interested in getting favorable laws on the books, Mr. Pertschuk said. Increasingly, he said, disparate industries are banding together to back the same laws, through either the business-funded American Legislative Exchange Council, known as ALEC, or shared lobbyists. “There is going to be a feeding frenzy all year long in the state legislatures,” he said.
Pre-emption bills are not solely the province of Republicans. In 2010, Democrats in California blocked cities from requiring restaurants to label menus with nutritional information.
With Republicans now in control of a record 69 state legislative chambers, such bills have become more conservative.
Pre-emption invokes a paradox for conservatives, like Mr. Abbott, who have long extolled the virtues of local control in some areas, like education, but now say uniform standards are necessary in others.
“It has seemed hypocritical that the state wants the federal government to give the states more power, yet at the state level, they want to take power away from cities and counties,” Mr. Hodges, the Fort Stockton official, said in a telephone interview.
James Quintero, the director of the Center for Local Governance at the Texas Public Policy Foundation, said the pre-emption of city power was “new to the conservative movement here in Texas.” Still, he was ready to counter accusations of hypocrisy: “What we’re arguing is that liberty, not local control, is the overriding principle that state and local policy makers should be using.”
Mayor Betsy Price of Fort Worth, a Republican, bristled at Mr. Abbott’s suggestion that cities were overriding state regulation. Fort Worth has not banned plastic bags and prefers that the state regulate texting while driving.
“I think the less regulation, the better,” she said. “But there are times when we have to pass ordinances for the health and safety of our people. We’re here every day, and they’re in Austin once every two years.”
Some local governments say they pass their own regulations only when the state has failed to act, or when they have a unique situation. Bennett Sandlin, the director of the Texas Municipal League, said that fewer than a dozen cities had passed bag bans, and that many of those had special concerns about wildlife and water systems. Far more cities limit texting while driving. When he was governor, Rick Perry vetoed a statewide ban in 2011.
Texas cities have also tried a novel response to business complaints that varying local laws create a nightmare of bureaucracy. Because the state has failed to pass curbs on payday lenders, whose annual interest rates can top 300 percent, the Texas Municipal League encouraged cities to pass their own matching ordinances, creating what is effectively a statewide standard. By the league’s count, 20 cities have done so.
In Texas, many of the bills before the Legislature aim to prevent more cities from following Denton’s lead in banning hydraulic fracturing, or fracking. Representative Phil King, a Republican representing a district near Denton and the national chairman of ALEC, has sponsored two pre-emption bills. The first bill would require local referendums to be certified by the state as legal, and the other would require an assessment of the cost, in tax revenue, of any local attempt to regulate oil and gas.
Mr. King’s bills are restrained compared with one submitted by a freshman lawmaker, Senator Don Huffines, a real estate developer and Tea Party Republican from the Dallas area. Cities view the bill as an attempt to limit them to powers expressly granted by the Legislature. In a letter, the Texas Municipal League warned that this “super pre-emption” bill would have wide-ranging consequences, such as wiping out restrictions on where sex offenders can live.
Mr. Huffines said the bill was being redrafted to make it easier to hold local governments accountable. “Local control is not a blank check,” he said, adding that local regulations and disregard for private property rights had, in his view, been a drag on the “Texas miracle” of economic growth for years.
“I think there’s really no end to it,” he said. “And that’s the proper role of the State Legislature, to rein them in.”