The Other Right-Wing Tidal Wave Sweeping America: Federal and State Preemption of Local Progressive Laws
Preemption allows corporations to boost their profits by suppressing local government power, community groups and citizens.
Last week, the National League of Cities released a report tracking an outbreak of state laws stepping on and nullifying local progressive laws and policies across the country. The picture it paints in seven key areas is shocking to anyone who believes in local democracy.
The report, “City Rights in an Era of Preemption,” says 24 states have preempted local minimum wage increases; 17 have stopped paid sick or family leave; three have voided anti-discrimination protections for LGBT individuals; three have stopped laws aimed at home sharing (like AirBnB that has tightened affordable housing options); 37 have blocked local regulation of ride sharing (that compete with the more heavily licensed taxis); 17 have blocked municipal broadband (challenging telecom monopolies); and 42 have limited local taxation and spending.
Preemption is the legal term that describes this legal assault, which extends to many more areas, among them firearms, factory farms, pesticide regulation, fracking, nutrition labeling, and e-cigarettes. In almost all instances, preemption is a deliberate state government-sanctioned corporate takeover to boost private profiteering by suppressing local government power, community groups and citizens. The big exception outside profiterting are anti-LGBT measures, which reflect another far-right agenda.
AlterNet’s Don Hazen and Steven Rosenfeld recently spoke to Mark Pertschuk, director of Grassroots Change and Preemption Watch about this insidious trend. Pertschuk discusses its growth in recent years, its explosion in 2016 and 2017 as Donald Trump has diverted media attention, and how grassroots protests have been effective in exposing, slowing and stopping some brazen corporate power grabs.
Pertschuk’s message is harrowing and hopeful. On the one hand, there is huge momentum behind preemption that often protects corporate interests, but sometimes is simply a stand in for right-wing ideology. There is hope, however, because there are key cases where community activists have been able to marshall broad public support and legislatures have backed down. And increasingly, elected officials like Tallahassee, Florida, Mayor Andrew Gillum, have beaten the GOP and gun lobby in court, and are creating coalitions with other elected officials to defend local democracy.
Steven Rosenfeld: Let’s start by asking what preemption is, because it’s kind of an opaque term.
Mark Pertschuk: Well, right… Like voting rights, federal and state preemption are very fundamental issues of democracy and they’ve become much more significant in the last 20 years. The new Trump administration poses a threat of federal preemption that we’ve never seen. I don’t think we’ve ever faced it on this level before in history.
Federal preemption is used to stop progress at both the state and local levels, particularly the local levels, which is where progress is now coming from. The reason that I say that preemption is like voting rights is that in many, many respects, the last operating bastion of democracy is at the local level: counties, cities, school boards, other types of local agencies. That’s where innovations and progress and policy have been made.
The opponents of public health and the opponents of progress know that and they’ve known it for decades. They’ve sewn up Washington. They did that before Trump. They feel very comfortable that they can control the agenda in Washington. And they’ve accomplished that in most states. Even in progressive states, ALEC [the pro-corporate American Legislative Exchange Council that drafts model bills and finds legislative sponsor, usually Republicans], the individual companies, industries, their lobbyists are confident… Proponents of preemption feel comfortable that they can control the agenda, that they can stop progress that will eat into their profits.
That’s the big picture. Preemption is a difficult term because it’s technical and it’s legal. It simply means when the federal government takes away the authority of states and local communities to pass stronger health, safety, and social justice laws; or when the state takes away the authority of cities and counties to pass stronger health, safety, or social justice policies at the local level. That’s where it’s mostly been in the past 20 years.
Don Hazen: This is across the board from plastic bags to minimum wage to fracking to….
MP: Every issue you can possibly imagine that anyone would care about that impacts workers, health, safety, or the natural environment.
SR: It’s an incredible list. It’s guns, sick pay, tobacco, e-cigarettes, LGBT rights, soda taxes, plastic bags, pesticides, local utility districts, fracking, and sanctuary cities. Even sprinklers!
MP: Fire sprinklers are a good example. This is the other thing, with preemption, with state preemption historically, the way that cities and counties have lost their authority over guns, tobacco, paid sick days, minimum wage, is exactly the same from issue to issue. When you look at what happened in residential fire sprinklers, believe it or not, it is identical to what the strategies that are coming to bear now on paid sick days, for example.
There’s been quite a vital grassroots movement for 30 years that started in California to mandate residential fire sprinklers in all new homes, including single-family homes and town houses, as well as apartment buildings. It’s been quite successful because the main advocates are members of the fire service, fire chiefs and fire marshals. It’s also been a nonpartisan movement, grassroots movement and it started in San Clemente with the fire chief. Now there are more than 360 local ordinances and two states, California and Maryland, require universal fire extinguishers in all residences.
It was a grassroots movement. But about 10 years ago, give or take, the National Association of Home Builders, which is the organization that represents primarily the builders of large developments, decided that they wanted to stop this grassroots movement. It was almost reflexive. Fire sprinklers are very inexpensive in the places where they’ve been mandated just because the price has come down. When you’re doing them in new construction, they’re very cheap, but the industry did it [pushed preemption laws] to do something at the state level. Fifteen states ultimately preempted the local authority to strengthen the building codes or fire codes around residential fire sprinklers.
It’s the first time in history that states have ever taken away the authority of communities of local fire departments, local city councils to strengthen their building code or fire code on a specific issues.
SR: How did these laws get passed in the first place?
MP: There’s really three ways. The first way is raw money. I think it’s basically lobbying power, sophistication and campaign donations. I don’t think that’s a mystery.
The second way, and this is the way that you get legislators who maybe are arguably progressive, cut deals. For example, the other NRA, the National Restaurant Association, or their state affiliate will say, You can have a local law on food and nutrition or on paid sick days, but the only way you’re going to get it, is if you also preempt all stronger local ordinances. It’s used as a bargaining chip, but again it’s like bargaining for voting rights. It’s like saying, We will increase the minimum wage at the state level, but you’re only going to get two-thirds of a vote for every vote in the cities.
You know what I’m saying? In other words, it’s an elected official bargaining away…
Steven Rosenfeld: Their proactive agenda and local options….
MP: Right. You wouldn’t want to negotiate voting rights for cities and by the same token, you don’t want to bargain away local democracy. But that is how it is occurring.
The third way is emerging, which is you have these states where state fiscal mechanisms withhold funds from localities… Arizona is the poster child, where there’ve been these fights over tobacco and a few, a handful of other issues for a while, for decades. But now it’s every issue and you get into these almost grand fights between the state legislature and cities, and the legislature drops the fiscal bomb. They’ve preempted everything by using the fiscal mechanisms, the transfer of municipal funds from the state to the cities. This is over any issue that any single member of the legislature objects to… That also includes police and firefighter money. As a practical matter, that is stopping progress on every single social and health issue.
DH: There’s no backlash from the voters or the courts?
MP: This is a really important question. I’ll start with courts and then voters. This is where voting rights and preemption are radically different. Roughly speaking, the federal constitution is on the side of voting. There are lots of nuances in there.
But very clearly, the federal constitution is 100 percent on the side of [state and federal] preemption. Ultimately preemption is purely a matter of raw politics and grassroots mobilization because the U.S. Constitution says that the federal laws are the supreme law of the land, the Supremacy Clause. The federal constitution, let alone the state constitutions, give almost no fundamental authority to local subdivisions, to cities and municipalities. This is a fight that we cannot ultimately win in the courts… only temporarily perhaps.
SR: I thought Republicans were all for local control.
MP: With very few exceptions, this isn’t about ideology. This is all about money with the possible exception of the LGBTQ discrimination where preemption’s becoming a central issue.
Take a place like Texas where we’ve done a lot of work, and 10 years ago, most legislators, especially Republican legislators, would never have dreamed of preempting local authority because there is a deep tradition of local control. Oil and gas regulation wasn’t preempted in Texas until 2015 because the city of Denton banned fracking via initiative in November 2014.
There was virtually no preemption on any social justice or health or safety issue before that time. But that’s happening now and there’s legislation in their biannual legislature. There are more than 100 preemption bills, including a number of bills that are blanket preemptions like in Arizona. One out of 100 Republicans that have addressed this issue [honestly] have made a nod to the fact that this is a blatant violation of conservative values. Mostly, it’s pure politics.
SR: More than 100 bills in Texas. What’s the rest of the national landscape?
MP: Going back 50 years, 40 years, preemption was something that was just a mechanism for managing the relationships between federal, state and local government. It was really never used as a broad tool for policy change; it was rules of the road. It was not until the 1980s, the late 1980s that the tobacco industry turned state preemption especially into a weapon against a grassroots, health or social change movement. What’s happening today around preemption, both state and potentially federally, is a new phenomenon. It really started six or seven years ago.
It has two attributes. One is that now almost every issue that matters to American voters is at risk of being preempted by either the federal or state government or both. The second is, that the real change is that preemption is being used as a blunt instrument to destroy local democracy, and that’s new.
To get back to your question, what’s happening now and what’s different. In each of the last four years, the threat of preemption has grown and the number of bills introduced has grown. There has been a lot of pushback, but it has not generally been within the political parties. It’s generally been advocacy groups like Family Values @ Work, for example, or Americans for Nonsmokers’ Rights working on local smoke-free ordinances, and dozens of other great organizations. There has been success in stopping preemption, but the pressure has grown.
DH: What’s the threshold for success? What does it take—people in the streets?
MP: What industry is trying to do here, it’s almost always industry, is destroy grassroots movements or stop them before they start. Gun violence prevention is the example. Forty-three states have essentially comprehensive preemption, as is the case in Florida. What has happened historically is that when you have five to10 states, even 15 states, that preempt local authority, you still have say 35 states who have that ability to grow grassroots movements for the targeted policy. That means that on a national scale, the strategy of states’ preemption on a single issue has not succeeded in stopping progress. When you get to 20 to 25 states, certainly 30 states, it tends to stop national progress. When you get to 43, the case with firearms, I think we’ve seen the impact of that on the ability to grow a powerful and effective gun control movement.
Let me go back to your other question because it relates to public responses. Yes, 2016 was worse than 2015 in terms of the pressure to pass state preemption and the number of bills introduced. There was a fair amount of pushback, so it wasn’t all bad news. But two things fundamentally changed for 2017. One is that, we hear the term “chaos” around politics now and whether or not you agree that there is chaos, there is a sense among the industry lobbyists at the state level that the attention of the media and the public is on other things, potentially. ALEC sees this as a historic opportunity. What ALEC is really doing is almost a quantitative change, not a qualitative change; they’re just doing what they’ve done for the last six years, but they’re doing more of it. More bills, more pressure, more money to do state preemption across all these issues or ideally for some of these group, lobbyists, do it on all issues all at once if they can, like in Arizona.
The second thing that’s happening is that, we’ve had effectively a firewall at the federal level going back at least eight years, or longer where either whoever was the president or held the Senate majority, or the House was split between the parties. You might not be able to get good legislation passed, say on paid parental leave, paid family leave, but you could stop something really horrible from passing. So there’s been a firewall. Obama in 2009 published a memo saying, I’m directing all of the agencies of the federal government to avoid preemption whenever possible. It was one of the better things ever written about preemption. It was a very strong anti-preemption policy. Of course it’s no longer on the White House website.
We don’t know what’s going to happen at the federal level now, but there’s two things. One is, it is certainly conceivable Congress will pass and the president will sign legislation that preempts stronger state and local laws on any number of issues, that’s number one.
The second is that, a number of federal regulatory agencies already have significant authority to preempt stronger laws. I think of the EPA and toxic chemical regulation, which just got increased preemption that was signed by President Obama. Scott Pruit, who now leads the EPA, has the authority to do some pretty serious preemption of stronger chemical regulations in California and New York, and other states. A lot of those state laws are the underpinning for example, of environmental justice work across the country.
SR: And then there’s a corresponding push in the states with GOP political majorities.
MP: Yes. And we’re talking about probably 40 or more states. This is not just the number of states that may have switched [political majorities] and have trifectas [GOP control of statehouse chambers and governor]. You have the potential of preemption on one or more issues. The second is that, for the first time in memory, you have the potential for preemption of stronger state and local laws on tobacco, nutrition, the list is long.
Groups like the tobacco industry and ALEC, and all of these groups, they’ve been planning this for decades. This is a long-term strategy that they’ve been committed to. What they’re doing is they’re trying to finish a job that they started 20 years ago. They’ve systematically seen the reduction of democratic voice in federal decisions; reduce the voice of ordinary Americans in state decisions, and now the target is cities and counties, period.
DH: But you said that public protests can stop them.
MP: To an extent. There’s several factors, but simply put, the groups that fund and participate an ALEC; companies that participate in ALEC are generally scared to death of city and county action, policies, and more broadly real grassroots movements. The real grassroots movements come from local movements that get things done at the local level. When a city in Oklahoma uses its zoning to regulate factory farms… to protect the environment and human health, and that is part of an environmental justice movement, that’s really scary to industry, because there are thousands of cities and counties in the United States [that could follow that example].
That’s where the tobacco industry got beaten on smoking. That wasn’t just a fundamental policy change, banning smoking. I’m old enough to have smoked cigarettes on airplanes. I know that social movements changed it. It was a huge revolution in public health. These other companies, the other NRA [National Restaurant Association] doesn’t want to ever face what happened to the tobacco industry domestically in the U.S. They’re doing this as a fundamental way of stopping any kind of progressive or health or safety movement.
For example, look at an issue that on its face seems narrow, but is dear to us here and to people in public health—the new soda tax in Berkeley, other Bay Area cities and now Boulder and Philly.
DH: I was just going to bring it up, because the money that the soda industry threw at fighting the Berkeley and recent Bay Area ballot measures was enormous—millions.
MP: That’s a good example of a grassroots movement and impact. The soda tax has straight-up public health benefits. There’s a reduction in consumption. It raises local tax money. But then in all of these places, all, Boulder now, these have really become social justice movements as much as or more than public health movements. The money in Berkeley goes to a universal school gardening program. Every middle school, public school, will have this and it’s really good. It’s more than just good for public health.
The American Beverage Association in this case, Pepsi and Coke, are scared to death. If this is left to grow, in two years we’re going to have 60-70 of these laws, maybe more. They raise revenue and they make people healthier in the community, especially children. They change culture. The culture around soda in Berkeley, now it’s Berkeley, Albany, Oakland, San Francisco, the culture is going to change. The next generation … It’s a little bit like tobacco. People growing up who are at elementary school in Berkeley now are going to have a different attitude about soda than people growing up 10 years ago. This is scary to that particular industry, which also includes the other NRA [National Restaurant Association], which makes a lot of money off Big Gulps.
When there’s a grassroots response and they have one or two really engaged people on the side of local control in the legislature, it’s exposed as an ugly issue. Preemption’s ugly. It is among other things, completely against any true conservative ideology of free market competition and devolving democratic participation closer to the people. When you bring attention to it, including the media and also grassroots, you can show it is not a theory. Groups have been very successful.
DH: But people have to be organized and pay attention.
MP: That’s right. You probably don’t know this, but it’s one of my favorite examples: Ohio just preempted all local minimum wage and benefits, paid sick days, all those benefits. This happened in mid-December, with an amendment to another bill preempting local authority to ban puppy mills. Do you know what puppy mills are? I had no idea. Anyway, it was an amendment to a barely related bill that in the right code section in state law. It goes into effect in March… They did it like that because they don’t like attention from their constituents or from the media. They want to do this in the dark like cockroaches.