When the late Supreme Court Justice Louis Brandeis coined the term “laboratories of democracy,” he was referring to states’ freedom to test innovative and novel policies before the federal government implemented them––such as Obamacare, which was modeled after a 2006 Massachusetts healthcare reform act. While Justice Brandeis was only talking about the state-federal relationship at the time, his message also applies more than ever to the city and state-federal relationship.
As the federal government has grown increasingly bureaucratic, partisan, and unable to pass consequential legislation, cities have picked up the mantle by working on bold, progressive policies to move the country forward. But many of these urban-led policies –– like municipal broadband and gun control –– have been stifled by preemption laws passed by state legislatures.
Traditionally, state preemptions were identical to federal preemptions, in that the higher level of government’s laws always took precedence over the lower level’s laws. However, as Democrats began gaining control of city halls and Republicans took over state legislatures, there has been a polarized weaponization of state laws to prohibit local control of entire issue areas. Take gun control, for example. Forty-three states have passed laws stripping municipalities of the power to pass ammunition and gun safety regulations. The weaponization of state preemption laws stifle innovation and threaten our democratic principles.
In Wisconsin, private telecommunication providers have lobbied the state legislature to preempt the creation of municipal broadband. Municipal broadband is high-speed internet provided by municipalities, instead of private companies. The benefits include faster connection speeds, lower costs to municipalities, and a competitive market that is no longer not dominated by a few large telecommunication companies. As a result of the Wisconsin state legislature’s preemption, though, internet speeds in the state rank 41st in the country. Studies show that internet speeds positively correlate with economic growth. In other words, municipal broadband preemptions suppress development. In a similar vein, certain preemptions suppress democracy.
In Florida, the state legislature passed a law that bars municipalities from passing gun-control legislation. If a local official defies the preemption or “the spirit thereof,” they can be fined up to $5,000 and removed from office. In one instance, a local official who was looking into a gun safety ordinance discarded the idea, explaining that “once our jobs were at stake, we dropped the plan entirely.” Preventing elected representatives from doing their job, representing their electorate, flies in the face of democratic governance.
State preemptions are not always pernicious. There are certain situations where an objective arbiter can quickly and more efficiently solve disputes. In fact, state preemptions played an important role during the civil rights era when towns were unwilling to pass anti-discriminatory laws, leaving it up to the states. Even today, there is a role for state preemptions. The lack of affordable housing in America’s largest cities is a problem with no solution in sight. NIMBYism had led to stagnation in affordable housing stock. One way to fix this issue would be for state legislatures to preempt zoning regulations; this way states can mandate much-needed housing.
Fighting preemptions is no small matter. Courts generally view towns and cities as powerless against and subordinate to states. Progress can still be made, however. In California, the State Supreme Court mandates that state preemptions be narrowly tailored and not interfere with local sovereignty unless absolutely necessary. In some states, cities have formed coalitions to lobby their state legislature to overturn preemptions. In other states, the public has overturned preemptions themselves through statewide referenda.
According to a 2018 National League of Cities study, Connecticut is one state out of six whose state legislature has not passed any major preemptions. While that may be the case today, I hope this piece serves as a cautionary tale to legislators across our great state. To continue being a laboratory of democracy, we must give our cities the freedom to experiment as they see fit.
Hacibey Catalbasoglu is a New Haven Alderman.