The disenfranchisement of small-town America

Industry groups ramp up lobbying for state pre-emption laws, which prevent cities from making their own decisions

April 10, 2015 12:00PM ET

by Claire Gordon @clairedon Google+

In November, the Pennsylvania state legislature, under intense lobbying by the National Rifle Association, passed Act 192, allowing organizations like the NRA to sue cities and towns over any local gun restrictions. It also would require the city to cover the gun advocates’ legal fees.

Under threat of litigation, at least 20 municipalities in Pennsylvania have moved to repeal local firearms ordinances. One of them was the quiet community of Jenkintown, which had passed a measure in 2010 requiring gun owners to report a lost or stolen gun to the police within 72 hours.

“We have a very small budget in this town and we really can't afford to defend a lawsuit against an organization with deep pockets like the NRA," Jenkintown Mayor Ed Foley told America Tonight. "We really had no choice but to rescind this ordinance and take it off the books.”

More on the Pennsylvania gun fight

"We're powerful. And we don't mind putting that power to work for our constituents," said Jonathan Goldstein, the NRA's attorney in Pennsylvania. "That's what they expect us to do. That's what they ask us to do. And by God, we're going to do it."

What went down in Jenkintown is happening across the country, as industry groups and corporations push states to pass so-called pre-emption laws in order to dismantle city ordinances that they dislike.

"Why would a freedom-loving, conservative Republican say, 'Lets take away all local power?’ There's no philosophical or ideological basis for that," said Mark Pertschuk, the director of Grassroots Change, which fights against the pre-emption of public health laws. "It's about the money."

It's a strategy that was pioneered by tobacco interests in the 1980s, and embraced with gusto and great success by the NRA. In the last few years, other business groups have gotten into the game, from the restaurant industry seeking to smash local minimum wage laws to the plastics lobby hoping to scuttle plastic bag bans.

‘Why would a freedom-loving conservative Republican say, ‘Let’s take away all local power?’ There’s no philosophical or ideological basis for that.’

Mark Pertschuk

director, Grassroots Change

States already have the fundamental right to trample local law. Almost a century ago, the Supreme Court ruled that the power of cities "rests in the absolute discretion of the state."

Asked whether a lost-and-stolen gun ordinance was a good idea, Jonathan Goldstein, NRA's attorney in Pennsylvania, replied: "It may or may not be, but that's not really what's at issue. What's at issue is that the municipalities have no right, have no authority, have no power to pass those sorts of laws."

Many states do grant cities broad authority to self-govern on issues of local concern. Pre-emption laws require changes to those state constitutions. But if grassroots movements get strong enough, it can be dangerous for lawmakers to push for constitutional amendments or pre-emption laws at all. In the last decade, as the anti-smoking movement gained momentum, several states have rolled back their pre-emption laws that banned local smoke-free ordinances.

In other words, these battles can get very messy and very political. Here are three issues where industry groups have adopted pre-emption as a part of their political playbook:

Paid sick days

On June 22, 2008, the coalition Paid Sick Days Milwaukee delivered their petitions for mandatory paid sick leave, signed by an estimated 40,000 people, to city hall.

Flickr/Voces de la Frontera

In November 2008, Milwaukee voters passed a referendum granting paid sick leave to all private sector workers, making it the third city in the country to pass such a law. In response, the city's chamber of commerce sued, calling it "an illegal extension of the city of Milwaukee’s authority into areas of law and regulation reserved to the state."

As the case was still winding through the courts, Scott Walker became governor, and all three branches of government turned red. In 2011, the state passed a law banning any local government from enacting a paid sick leave law.

That summer, the Wisconsin bill was taken to an American Legislative Exchange Council conference, according to Ellen Bravo, director of the Family Values @ Work consortium, which advocates for paid sick leave.

ALEC, a business-backed group that counts thousands of state legislators as members, helped disseminate the bill as a model. Ten other states have now passed similar laws.

But the campaign for paid sick leave has heated up hand-in-hand with pre-emption. Eighteen cities and three states have passed laws mandating paid sick leave. In Philadelphia, paid sick leave protections will come into effect next month – but not if some conservative state lawmakers have their way.

Hydraulic fracturing

On July 15, 2014, campaigners hold a sign outside city hall, in Denton, Texas, in the lead-up to the referendum on fracking.

Tony Gutierrez/AP

In November, Denton, Texas, became the first city in the Lone Star State to ban hydraulic fracturing. It was a stunning upset for the oil and gas industry, having outspent the grassroots campaigners around 10 to 1 and coming from fracking's birthplace. The city had more than 270 gas wells inside its limits.

Within hours, the Texas General Land Office and the state's biggest petroleum group submitted separate legal challenges. The state declared that it would continue to issue drilling permits within the city limits. Now, multiple bills are in the state legislature that would pre-empt local control entirely.

Hundreds of other communities have banned or issued temporary moratoriums on the controversial oil and gas extraction method, with mixed results. A West Virginia court sided with an energy company, agreeing that only the state's department of environmental protection could regulate oil and gas development. The Pennsylvania Supreme Court, however, struck down parts of a law that sought to pre-empt any local control over oil and gas drilling – citing the state constitution.

And in New York State, where the anti-fracking movement was the broadest and fiercest, Gov. Andrew Cuomo banned the practice outright.

Broadband

A historical map of Chattanooga, Tennessee.

Library of Congress

If you want to download a two-hour, high-definition movie in Chattanooga, Tennessee, it would take you 33 seconds. It's some of the speediest Internet in the world, about 50 times faster than the U.S. average. It's provided by the city's municipally-owned electricity company, EPB, and has helped spark a remarkable tech boom for a midsize city.

Chattanooga hoped to expand its fiber-optic footprint to other communities in need, but it couldn't. A 1999 state law prohibits cities in Tennessee from providing Internet access beyond the boundaries where they provide electrical service.

For more than a decade, legacy providers like AT&T, Time Warner and Comcast have spent millions lobbying state legislatures, and have succeeded in getting pre-emption laws passed in 20 states, limiting cities from providing Internet to residents, according to the Center for Public Integrity.

Then, in February, minutes before the Federal Communications Commission made national headlines with its ruling on net neutrality, the agency declared that cities in Tennessee and North Carolina were free to expand their broadband services. President Obama had advocated for the move, saying the state laws hindered competition.

Within hours, Republican lawmakers introduced legislation to block the FCC ruling.

If they don't succeed, the FCC vote signals an enormous victory for local governments. States may be able pre-empt their cities, but the federal government can always pre-empt the states. And that's in the Constitution.

George Lerner and Christof Putzel contributed reporting.