The Florida Legislature is strongly opposed to gun control. Even in the aftermath of the shooting in Parkland, state legislators opposed strict restrictions on the sale and use of firearms. But there’s another kind of control that they do believe in: the control of gun control.
In 1987, Florida passed a bill that prohibits localities from enacting their own gun ordinances. This was an act of “preemption”—the name for when a higher level of government, like a state, withdraws or limits the authority of a lower level government, like a city or town.
For a while, the bill was not fully enforced. Cities like Miami and Tallahassee created and maintained additional gun regulations, designed to minimize violence in their more urban communities. But that, like so much about America’s political landscape, changed in 2011. That year, the legislature passed an updated version of the law, backed by the National Rifle Association, that imposed harsh penalties on local officials who enacted or enforced gun ordinances, including a $5,000 fine and up to $100,000 in damages.
Three years later, two gun-rights organizations sued the city of Tallahassee, its mayor, and several city commissioners for not purging a pair of inherited ordinances that outlawed firing guns in public parks, one of which had been on the books since 1957. Because the law also forbids the use of public funds in gun ordinance cases, the defendants (including eventual Democratic gubernatorial nominee Andrew Gillum) had to secure pro-bono legal representation. This summer, a circuit court judge struck down the fine, and Governor Ron DeSantis, who narrowly bested Gillum for the office in 2018, appealed the decision.
The escalation of state preemption laws is happening everywhere. For the last decade, preemption has spread to all states and across virtually every salient policy area—from environmental and labor protections to immigration and housing rights. The vast majority of preemption bills stem from special interests and industry groups with anti-regulatory agendas.
These laws are extraordinarily damaging to our society. They result in increased racial and gender inequality. They correlate with lower life expectancy. They inhibit citizens from meaningfully engaging in politics. Like gerrymandering and dark money, we should consider preemptionto be a serious threat to democracy.
The seeds of modern preemption were planted in the 1980s, when the tobacco industry began to push for state laws barring tobacco taxes and smoke-free ordinances. Over the next two decades, other industry groups and special interests adopted big tobacco’s strategy. During the crime wave of the 1990s, for example, the National Rifle Association aggressively lobbied states to stop American cities from enacting local firearms regulations.
The tobacco industry and the NRA are members of the modern conservative coalition, comprised of industry groups and trade associations, small-government libertarians, and social conservatives. These groups were the first to recognize state preemption as a powerful mechanism to rein in progressive cities and spread conservative policies. To wield it effectively, however, they had to gain control of state governments. In 2010, as the Republican Party swept into power in statehouses across the country, conservatives gained newfound ability to preempt localities.
As a result, the last decade has seen an unprecedented swell in the number of preemption bills introduced and passed by state legislatures. As of 2019, twenty-five states have passed laws preempting local minimum wage ordinances (up from ten states in 2010). Twenty-three states have banned ordinances requiring paid sick days (up from one state in 2010). Between 2014 and 2019, an astounding forty-four states removed or prevented employment and labor protections for Uber and Lyft drivers.
Some of these laws are notorious. North Carolina’s House Bill 2, or “the Bathroom Bill,” famously mandated that individuals use the bathroom corresponding to the gender assigned to them at birth. A direct attack on the transgender community, HB 2 was passed to stop the City of Charlotte from increasing its anti-discrimination protections. The same bill also explicitly preempted local regulation of employment standards, such as increasing the minimum wage and mandatory paid sick days.
But other preemption bills have targeted issues that, to the average American, appear to have no political salience. These include regulations of wireless alarm systems, Styrofoam products, milk and frozen desserts, and even beekeeping. Sixteen states have preempted local regulation of residential fire sprinklers in the last decade.
Why sprinklers? By 2009, a national, nonpartisan grassroots movement led by members of the fire service had successfully fought to get nearly 400 localities to require that new residential buildings have fire sprinklers. In response, the National Association of Home Builders, the group that represents large developers, turned to preemption. The developers saw such ordinances as pricey nuisances and, determined to avoid any additional profit loss (however negligible), successfully pressured many state legislatures to thwart the firefighter’s movement.
The increase in volume, sweep, and frequency of preemption laws is hardly driven by grassroots concerns. Instead, it reflects a pattern in which industries have used preemption to promote their putatively pro-business, anti-regulation agendas with no regard for public health and safety, nor the public will. They have found happy advocates in the American Legislative Exchange Council (ALEC), an organization bankrolled by industry lobbyists that drafts conservative state legislation and shares it across the nation. ALEC provides the templates for many of the preemption bills circulating today. A recent report from the Local Solutions Support Center and State Innovation Exchange noted that about one in five of the over 1,000 ALEC bills introduced each year are signed into law.
Still, this is not an exclusively red state problem. In Democratic strongholds like California, special interests use preemption just as aggressively to hamper local policy innovations. Last year, the California Legislature passed a bill prohibiting local governments from imposing taxes on sugary drinks. The decision undercut local lawmakers, who had passed soda taxes in a variety of jurisdictions to curb type 2 diabetes and obesity and to raise funds for schools and other public services.
Why would California’s democratic-controlled legislature pass such a regressive law? In short, they were blackmailed. To gain leverage over an unsympathetic legislature, the beverage industry mounted a lavishly funded ballot initiative campaign that would have changed the vote threshold for localities to approve tax increases from fifty-one percent to two-thirds. If passed, the resulting logjams would have hindered funding for vital public services, including fire, transit, and law enforcement. When beverage companies offered to scrap the initiative in exchange for the preemption bill, legislators accepted.
Old preemption gave deference to judicial determination. It respected citizen initiative and the role of local governance. It allowed municipalities to work with states in pursuit of the right regional policies. That has all vanished. Now, preemption “is being used as a blunt instrument to destroy local democracy,” said Mark Pertschuk, director of Grassroots Change and Preemption Watch.
In many states, aggressive preemption is dismantling any illusion of cooperation between state and local government. In 2016, Arizona passed Senate Bill 1487, known as “the mother of all local preemption bills,” which allows the state to strip funding from localities that pass any regulations that deviate from state law. Texas’ 2017 law banning sanctuary cities, like Florida’s law banning gun control, threatened officials who “adopt, enforce, or endorse” a sanctuary city policy with fines of up to $25,500 per day and removal from office (the law has since been struck down).
Punishing local officials and governments for flouting preemption may seem harsh, but fair. In most cases, localities are still treated as creatures of the state. They cannot violate its laws. But preemption laws have produced a“chilling effect” on local policymaking and innovation, particularly in large, diverse cities in red states, where local action and creative problem solving is needed most. As Andrew Gillum told the New York Times: “It is intended to put everyone across this state and across this country where these efforts are taking place on notice: Don’t come near it…And if you do, we’ll come after you personally, we’ll come after your government, we’ll come after the very survivability of your community by cutting off resources to you.”
Such an aggressive approach to preemption might still be justified if preemption were advancing the public’s interest. Defenders argue that is indeed the case: preemption is necessary to prevent regulatory patchworks, which hinder economic prosperity. “A statewide company has to follow so many different ordinances that they end up choosing to leave those communities due to lack of uniformity,” said one Georgia lawmaker.
But what preemption is being used for shows such arguments are, at best, disingenuous and, at worst, patently untrue. The Arizona legislature’s decision to preempt Tempe’s ordinance regulating dark money in local politics has no real relationship to economic growth. It does not cut red tape. And today’s preemption is making life economically worse for the vulnerable. Nationwide, preemption presents one of the greatest barriers to raising wages and living standards for low-wage workers. More than 60 percent of U.S. workers now live in states where minimum wage ordinances are preempted, and more than 40 percent of workers live in states where paid sick time ordinances are preempted. In 2000, those percentages were less than 2 percent and 0 percent, respectively.
Many preemption laws specifically target large, racially diverse cities, places where racial and ethnic minorities can have the most say on the problems that affect their lives. For example, when Birmingham passed a minimum wage law, the city was acting on the values of its black and progressive majority, whose voices were ignored by a disproportionately white and conservative state legislature. But the Alabama Legislature soon preempted it out of existence.
It is not just Alabama. Analyzing preemption across issue areas, political scientists Patrick Flavin and Gregory Shufeldt found that American states passed more preemption laws when they had higher African-American populations, combined with the most politically conservative citizens, where Republicans controlled both legislative chambers and the governorship (“Republican trifectas”), and a stronger conservative interest group presence. An interactive mapping tool set up by the Partnership for Working Families to track preemption shows that “state preemption follows a pattern of mostly white, male legislatures ignoring or overriding concerns of the women and people of color.”
Preemption has skyrocketed under Republican state dominance. But now that the genie is out of the bottle, it’s reasonable to expect Democrats to use it. So how do we judge in a transpartisan fashion what constitutes bad preemption?
Richard Briffault, a Columbia law professor and expert on local governance, identifies two areas of potential political consensus: the idea that localism has democratic merits but should not be unlimited, and that strong cooperation between different levels of government produces better outcomes. Preemption, then, can be labeled “bad” when it threatens a local government’s ability to make effective policies that align with their constituents’ needs and values, when the preempted policies present no threat to the wider regulating community, and when the policies respect fundamental rights and constitutional norms. Preemption can be labeled good when it overrides or blocks policies that would otherwise harm public health, economic growth, and racial and gender equity.
On that basis, recent attempts by the Texas Legislature to preempt paid sick days in Austin, San Antonio, and Dallas can be classified as bad preemption. Local control of economic issues is broadly popular in Texas. Roughly two-thirds of the state’s Republican voters support a city’s right to pass paid sick time and believe that local government most accurately expresses the values and needs of local residents. There was no good reason for the state to preempt these changes. It was plainly undemocratic.
Fighting this kind of preemption is hard but not impossible. In addition to pursuing legal strategies, advocates can build coalitions for local democracy across issues. They can educate public officials, judges, and city attorneys about preemption. Even in Republican-controlled states, advocates have won by bringing the fight against preemption into the public square—defeating, for example, North Carolina’s bathroom bill—and engaging voters about preemption to hold elected officials accountable.
But ultimately, the best solution is to elect state officials who respect local authority. As we head into the 2020 state legislative election cycle, remember that redistricting is not the only reason to pay attention to state politics. Preemption is also on the ballot.
