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We the People are being burgled. Again. The most recent hit is just the latest in a long string of political robberies, a nationwide crime wave being pulled off by moneyed elites and their political henchmen. With each heist, they haul off a little more of our democratic power: the ability of the workaday majority to have any real say in the corporate and governmental decisions that affect us. The elites are master thieves, often plucking pieces of our power without us realizing it, until we try to use them and–phhttt–they’re gone. Rather than packing their burglar’s kit with crowbars, picks, and blowtorches, they’ve been breaking and entering our trove of democratic rights with tools such as:
Super PACs and dark money
Repression of protestors
This concept has been around since Day One of our nation, contained in the Supremacy Clause of the US Constitution and in similar clauses in state constitutions. It allows higher levels of government to intervene and overrule lower levels– the Feds can legally preempt state and local laws, and states can preempt city and county ordinances.
Obviously, this extreme power is fraught with danger, so it’s meant to be used sparingly and only to advance a very big public purpose like, for example, overriding state and local laws that officially sanction rank racial discrimination.
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You might think: That’s good, but gosh, what if such a dicey, potentially tyrannical power fell into the wrong hands? Well, don’t look now, but in just the past half-dozen years, some of the greediest corporations and grubbiest of politicos have colluded to take preemption into their own hands. Discarding the concept’s core principle of serving the public interest, they’re presently wielding its nullifying power as a cudgel to clobber democratic rule and impose special interest policies against the will of the people.
As you might expect, Trump & Co. are big on federal preemption. They’re targeting a multitude of state and local laws for extinction, including popular and effective provisions enacted to ensure workplace safety, provide consumer protection, establish sanctuary cities, expand voting rights, prevent air and water pollution, reduce gun violence, maintain public oversight of for-profit charter schools, improve children’s health, and mitigate climate change.
It’s at the state level, however, that the intrusive and abusive power of preemption is exploding, as today’s imperious right-wing governors and legislators push that nuclear button in a rapidly escalating state war to quash progressive actions by local governments and grassroots movements. Democracy be damned.
Far from advancing any big public goals, preemption is now being used to advance corporate agendas (in exchange for corporate campaign cash, of course). A February report by the National League of Cities found:
And there’s much more. States are also dropping the preemption bomb on communities trying to regulate damage from factory farms, Big Oil frackers, coal-fired utilities, pesticide spewers, gun manufacturers, plastic bag makers, e-cigarette peddlers, pipeline builders, et al.
According to the Center for Media and Democracy, 36 states introduced laws preempting cities in 2016, up from 29 states in 2015. State lawmakers are on a pace to exceed those numbers in 2017.
The Mayors Innovation Project is a learning network among American mayors committed to “high road” policy and governance. They’ve compiled a guide to resources available to people reasserting their democratic right to local “home rule.” Here are some of their recommendations:
MayorsInnovation.org offers Protecting Local Control: A Research and Messaging Toolkit. The report provides framing messaging guidance for fighting the preemption pandemic by fighting to protect public health and safety and set workplace standards.
A project of GrassrootsChange.net, Preemption Watch helps advocates for local authority better understand and counter preemption. It also provides local and state level alerts.
To learn how to get involved, visit the website of the Campaign to Defend Local Solutions (defendlocal.com). It’s a “nonpartisan and people-powered” coalition of local leaders focused on defending communities’ rights to local solutions.
Grandstanding state politicos are shamelessly joining in. To endear themselves to tea-partiers and other far-right factions, governors and lawmakers in a couple of dozen states are passing preemption laws that are frivolous, malicious, or both. Three states, for example, have overturned cities’ anti-discrimination ordinances to protect LGBTQ people. Last year, North Carolina’s infamous HB2 legislation cancelled the decision of the citizens of Charlotte to allow transgender people the use of the bathrooms of their choice–making the state (in all of its majesty) the supreme Potty Police, and its GOP majority a national laughingstock.
What’s causing this?
Three powerful political tempests have converged to spawn a perfect storm of preemption:
1. A Republican heat wave. Around 2010, the GOP’s billionaire donors and ideological schemers began to pay particular attention to state offices. Harnessing the fanatical energy of their tea party faction, fueling campaigns with corporate cash, partnering with big business lobbyists, unleashing gerrymandering manipulations, and suppressing voter turnout, they’ve marched like army ants from state to state, capturing legislative and gubernatorial power. Their dominance of state-level offices is jaw-dropping and unprecedented: Republicans occupy 33 of America’s 50 governors’ mansions, control 68 of the nation’s 99 legislative chambers, and hold “trifectas” (the governorship and majority control of both legislative chambers) in half of our states.
To ram the raw ugliness of preemption into law, GOP strategists and state officials have relied on this overweening, single-party command. After all, storming over local people’s wants, needs, values, and democratic authority is inherently ugly and unpopular–even among Republican voters. It requires lawmakers to side openly with corporate profits over people, to assert publicly that they know better than local yokels, to resort to rushed and sneaky lawmaking, and to usurp local people’s power to control their own destiny.
Emboldened by numerical clout, however, even the meekest of Republican legislators and governors in these states have unleashed their inner, might-makes-right autocrats. “We can pretty much do whatever we want to right now,” Rep. Jim DeCesare, a Republican legislator in trifecta Kentucky, bragged to a ProPublica reporter, adding: “This is our time to shine.”
Dillon’s Rule vs Home Rule
THE LEGAL THEORY BEHIND STATES’ AUTHORITY to overrule local governments was first articulated by Judge John Forrest Dillon. In an 1872 opinion, he ruled that municipalities have only the powers state legislators expressly grant them. “Dillon’s Rule” has subsequently been cited and adopted by the US Supreme Court and other courts, but the theory is not without its critics. Other judges have made eloquent arguments for the principle of “home rule,” noting that unlimited state power imposes unreasonable constraints on the ability of local communities to govern themselves. Notably, Supreme Court rulings do not prevent states from passing legislation or amending their constitutions to expressly allow home rule, and today a new Home Rule movement is taking root to re-assert the rights of local people for self-governance. (See the Do Something box.)
Even in the reddest of states, many urban areas are governed by progressive-minded, pragmatic problem solvers. Not all local governments are progressive, of course, and not all progressive solutions pan out, but at least homegrown public officials live where they work, have a personal sense of their communities’ values and needs, and are usually more in touch with local voters than faraway state or national big shots. Among mayors, council members, commissioners, et al., there’s also greater pressure for bipartisanship (or nonpartisanship), because, unlike congress critters and state officials, local office holders are on the ground level of public service and can’t hide behind do-nothing, laissez-faire BS. Thus, as noted by Mark Pertschuk, director of the watchdog group Grassroots Change: “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 have been made.”
Indeed, local governments (prompted by gutsy grassroots movements) have an incentive to find practical, creative, common sense solutions. And they have been remarkably successful in developing forward-looking policies such as those that lift up the incomes of residents exploited by low-wage corporations; stopping the gross, sickening pollution of industrial ag’s massive animal factories; and protecting families from the terrifying militarized assaults by Immigration and Customs Enforcement and police agents.
Ironically, these relatively small, local rebellions have caused panic in the bullying forces of plutocracy. Congress, with only 535 members, can be controlled with special interest money and lobbyists–but there are more than 23,000 cities and counties, multitudes of local officials, and myriad aggressively progressive groups on the move. When people in one area find a way to control, say, the ruinous damage by rapacious fracking giants, other communities take note–and anti-fracking controls begin popping up across the country.
Local democracy works! And that’s a threat to the plutocrats. Unable to win locally (and honestly), the Powers That Be are out to usurp your and my fundamental democratic right to govern ourselves where we live. So determined are these scoundrels to purloin the rightful sovereignty of everyone from big city dwellers to small towners that they’ve resorted to Orwellian Newspeak to pervert the meaning of words. “So when we talk about local control,” pontificated a GOP preemption pusher from the Ohio state senate, “we mean state control.”
3. A corporate supercell spawning a hailstorm of special interest legislation. Just days after last November’s election, jubilant members and top staffers of the notorious corporate front group ALEC (American Legislative Exchange Council) gathered for a celebratory lunch and planning session at the group’s DC headquarters. But rather than looking toward Congress and the newly Republicanized White House, these schemers were drooling over so many right-wing state governments. “There’s a sea of red,” gushed an ALEC official, asking with delight, “What are we going to do with these new legislatures?”
Corrupt them, of course. ALEC–funded and run by such multinational giants as AT&T, Exxon Mobil, the Koch brothers, and Walmart–essentially functions as a hush-hush escort service. Since 1973, it’s been hooking up high-dollar corporate customers with on-the-make state lawmakers willing and eager to sponsor special interest bills. In closed-door sessions convened by ALEC, state officials and corporate lobbyists make legislative whoopee, generating “model bills” that the participating legislators carry back and introduce almost simultaneously in their multiple states.
For the last few years, ALEC has provided a major, nationwide burst of energy that’s powering state preemption laws. Its strategists realized that their corporate backers’ long legislative wish list (including holding down wages and freeing corporations to pollute water supplies and air) is repugnant and socially destructive. Preemption, however, provided a way for lawmakers to shift attention from the appalling substance of their corporate agenda to an arcane process debate about state-local governance. This back-alley channel lets corporations and the right-wing fringe outlaw or repeal progressive responses by our communities, nullify our elections, and overturn court decisions favoring local people.
ALEC has pushed preemption with a vengeance, rapidly turning it from a cautiously used power to the corporate-politico cabal’s weapon of choice. In 2014, for example, Jobs with Justice, Fight for 15, and other activist groups began winning campaigns in major cities for minimum wage hikes. ALEC responded by holding a how-to forum on stopping such local actions and circulated a model bill called the “Living Wage Preemption Act.” Sure enough, nearly half of states have passed a version of it, with Ohio being the latest.
By a large margin, people in the Buckeye State favor raising the wage floor, and Cleveland enacted its own increase last year. But a small group of corporate profiteers, including the National Restaurant Association, howled in fury. So, last December, the state’s Republican leaders rushed to appease them with a most generous Christmas gift: The Ohio legislature overruled the people’s will by suddenly hammering a preemption amendment onto a completely unrelated bill. It was lawmaking by sneak attack–a crude political mugging that retroactively negated Cleveland’s increase and outlawed increases by any other locality.
Time to rebel
Used properly, preemption can be a democracy-enhancing tool for balancing governing powers. But when perverted and used badly, as is increasingly the norm, it asserts corporate interests over public good. The anti-democracy extremism of corporate profiteers and their corrupted political hacks was bluntly expressed a couple of years ago by ALEC member, Howard Stephenson. The Utah state senator announced at one of the organization’s private forums: “We need to stamp out local control.”
It’s hardly news to the great majority of Americans, including most Republicans, that corporations already have way too much power over us. Letting elites quash our local decisions–by pulling the money strings they’ve attached to state officials–goes against all that America stands for. Yet the arrogance of these autocratic state officials has no limit–they’re grabbing for total domination over grassroots democracy. Greg Abbott, my state’s goofy governor, is one of those consumed by his own grandiosity:
“As opposed to the state having to take multiple rifle-shot approaches to overriding local regulations, I think a broad-based law by the state of Texas that says across the board, the state is going to preempt local regulations is a superior approach.”
People hate, hate, hate such pomposity and political overreach. So let’s run right at them. Protecting corporate profits and power by overruling democratically made local policies is a crime that’s easily understood and loathed by nearly all Americans. As progressives, let’s take hold of this issue; passionately challenge the preemption thugs at all levels of political action, from the streets to the ballot boxes; rally a broad-based right-and-left, bottom-up coalition to reclaim our democratic rights; and beat the bejeezus out of these sorry bastards.