Legislative preemption of local ordinances is a “wicked” problem with no clear solution. It represents a struggle between the legislature and local governments over which body should have power over local affairs. Local government is not mentioned in the US Constitution, and their powers are conferred by the states. States grant those powers so that local governments may design laws that reflect local familiarity with public problems and the will of local citizens and to do things more efficiently than the state may be able. Conflicts over local rules sometimes emerge between states and local governments. In 2017, the Florida Legislature passed several bills that preempted local government policies. The bills did the following:
- Removed local governments’ authority to regulate transportation service companies like Lyft and Über.
- Limited local authority to establish minimum pay standards and work conditions for public work projects with 50% or more state funding.
- Preempted local governments from regulating the placement of 5G transmission facilities on public right of ways and limited the amount they could charge for use of poles to $150 per year.
- Created a local referendum through which citizens of Gainesville could choose to remove the utility from city control and replaced by a governing board.
These acts allow the state to overrule a local government’s ability to pass some specific ordinances or, in some cases, they undo previous city choices. More restrictions likely are in the works. FL House Speaker Richard Corcoran is a proponent of legislative preemption of local government policies. He claims that the Legislature, with 160 members, provides better representation than local governments, which typically have only a few council members. He notes that state preemption of local ordinances provides greater regulatory efficiency, which allows businesses to operate with a simpler understanding of state-level regulations and thus makes Florida a more attractive place to locate and expand businesses. This is not limited to Florida: state preemptions of local rules are occurring throughout the nation.
Why do state legislatures preempt city policies when cities only have the power to enact policies because their state gave it to them?
There are several reasons we might see the state legislatures angling to curtail local governance. Conflicts emerge when state and local governments disagree about the substance of local government policies. The legislature may get pressure from companies (such as Lyft) that the city is regulating. There also may be partisan or ideological differences between the legislature and cities. A Democratic-dominated state legislature, for instance, may object when cities enact ordinances that are not consistent with their view of what the state does (and does not) value. These conflicts may result in state preemption of local decisions. In fact, a 2017 study by the National League of Cities reports a recent rise of state preemptions of local decisions. The report attributes the increase to the success of special interest lobbying, distinct differences in urban and rural policy preferences, and single party domination of state legislatures.
We began a study of state preemption of local ordinances in 2016. We analyzed 354 court cases decided in forty-one states in the years 2000 through 2012. By analyzing a large number of court decisions, we may draw inferences about the factors that result in state preemptions of local decisions. In our analysis, we tested several behavioral and institutional characteristics of state governments.
What did we find?
Our results show that states are more likely to preempt local government policies when state officials and local officials’ ideologies differ. For example, a conservatively controlled state legislature is more likely to preempt policies passed by liberal city governments within their border than they are to preempt policies passed by a conservative city government within their border. The same relationship holds when the state is liberal and the city is conservative. In our study ideology was important and party was not.
Is preemption “good” public policy?
Sometimes preemptions are popular with the majority. In 2015 the Florida Legislature enacted policy that stopped the town of Waldo from running a speed trap. It was a bipartisan bill and had the backing of the American Automobile Association. In 1987 the Florida Legislature forbade local governments from regulating any aspect of firearms use within their borders. That was unpopular in larger cities, but had the backing of the National Rifle Association. So preemption is “good” if you agree with the legislature, but it is not if you disagree. This ignores the implications of preemption for democratic governance. We often view local decision making as the ideal. Local governments are closest to home and represent local decisions most clearly. The New England Town Meeting is an exercise is real local decision making, where voters decide how much to spend on parks, how much for salt for the roads, and so on. Local government in most of the nation is far removed from the town meeting, but the ideal of local control remains.
The preemption movement’s proponents claim that the state is a better judge of what is the most appropriate policy. Recall Speaker Corcoran’s claim about the Legislature providing representation that is superior to city and county governments. The incoming speaker has pledged to continue to preempt local policy choices. Thus there is continued institutional support for the claim that the legislature is better able to make decisions that affect people in cities than the city council.
The rift between states and cities fails to provide systematically for more efficiency or better representation. It may represent a case of majority tyranny, in which a majority may impose its preferences on a minority that has no recourse given the majority’s control of governance institutions. We can probably assume that state government preemptions will continue and that there will be more court cases as cities and counties challenge those preemptions. In time that may settle the issue through the courts, but state-city cooperation to effect good representation and efficient policy making would be more desirable.
Charles Barrilleaux is the Leroy Collins Professor and Chair of the Political Science department.
Jeffrey Swanson is a graduate student in the Political Science department. He is specializing in U.S. public policy.
Feature picture of Speaker Richard Corcoran being sworn in (available on Wikipedia).