September 25, 2013 By Alan Ehrenhalt
Shortly before it adjourned this spring, the West Virginia Legislature approved a bill to expand the home rule power of many of the state’s cities. Among other things, cities were given more freedom to impose a sales tax, clear blighted properties and streamline the granting of development permits.
Sounds like a good deal for the cities. And it would have been, had the lawmakers not slipped a couple of extra provisions into the legislation shortly before passing it. One stipulated that in order to qualify for the new home rule status, cities had to repeal most laws on their books limiting the sale or use of handguns. Another required them to stay out of the business of same-sex marriage. Pass a gay marriage law, the state told the cities, and you can forget about that new sales tax.
Now, states are notorious for passing preemptive laws that bar cities from acting as autonomous political entities. But as far as I know, only West Virginia has been brazen enough to put preemption right in the middle of legislation supposedly advancing the cause of devolution.
Even state officials who ended up supporting the whole package sounded embarrassed about it. West Virginia Gov. Earl Ray Tomblin, who signed the bill, allowed that it seemed to him “a little bit of a contradiction.” Tomblin added that “when you think of home rule …, it’s giving them more flexibility, and this does tie their hands somewhat.” More than somewhat, as a matter of fact. Charleston, which has had a gun background check law since the early 1990s, was told to get rid of it or drop out of the home rule project altogether.
This wasn’t a matter of partisanship. Tomblin and the legislative leaders are Democrats, but both parties supported the clumsy intrusion of the state into what are fundamentally local affairs.
It would be one thing if West Virginia were an aberration in the politics of 2013. But it’s more like the extreme example of local preemption that’s seized state legislatures nationwide this year. States are stumbling their way from their own bitter complaints about federal meddling—and even outright defiance of federal authority—to imposing dictatorial mandates on the local governments with whom they’re supposed to work cooperatively.
Georgia’s a good example. In the legislative session that concluded this spring, the Republican legislature redrew the election lines of the state’s largest local jurisdiction, Fulton County, to create more Republican voting power in the county’s Republican-held north and fewer seats in the mostly black southern portion. Two black Democratic commissioners in the county’s south were forced into the same district, which will eliminate one seat. The legislature seized control of the largely Democratic county election commission and gave Republican Gov. Nathan Deal the power to appoint the county’s top election official.
Meanwhile, in neighboring and mostly black DeKalb County, Deal suspended six members of the local school board and replaced them with his own appointees. Several of the members displaced are seeking reinstatement, and the law under which Deal acted is being challenged in court as unconstitutional. For next year, GOP legislators are readying plans to privatize many of the functions of the Atlanta-run MARTA public transit agency. Why are they doing these things? The standard explanation is that the agencies were being mismanaged and obstructing political and administrative reform.
“We’re not trying to run the day-to-day operations,” one proponent of the changes insisted to a reporter. “If it became a permanent meddling, I think that you would see some discontent.” But a Democratic legislator from Atlanta reacted to the DeKalb intervention by telling an Atlanta Journal-Constitution reporter that “this is setting a precedent of the state doing major power grabs on city councils and school boards as well as county commissions.”
North Carolina is another interesting case. As the state’s financial, commercial and cultural center, Charlotte has always played an outsized role in state politics. It has alternated between Democratic and Republican rule at city hall. But in the past few years, Charlotte has been trending increasingly Democratic. The city and surrounding Mecklenburg County were among the few jurisdictions in North Carolina to support President Obama for re-election in 2012. Charlotte’s former Democratic mayor, Anthony Foxx, is now the federal transportation secretary.
Still, conflict between Charlotte and the Republicans who dominate state politics seemed unlikely since the state’s new governor, elected in 2012, was Pat McCrory, himself a former Republican mayor of Charlotte. McCrory came into office this year with an ambitious agenda focused on economic development and education. And the legislators devoted attention to those issues. But what they spent much of their session arguing about was how to take power away from Charlotte, the state’s largest city, and give it to state and regional boards responsive to the state’s GOP leadership. Among the bills considered this year in Raleigh were ones to deny Charlotte taxing authority to support a new sports stadium; to regionalize control of a local social services agency; to limit the city’s annexation and environmental enforcement powers; and to deny previously committed funds for expansion of the city’s light rail transit line.
These moves generated an incredulous reaction even from some of the state’s most experienced and nonpartisan observers. “For years we heard conservatives say that the government closest to the people governs best,” the veteran columnist Rob Christensen wrote recently. “But they were talking about Washington. When it comes to Raleigh, they haven’t hesitated to use state power to advance their own agenda—even if it means disregarding local sentiment.”
And disregard local sentiment is just what they’ve done. The most egregious example in North Carolina this year was a legislative effort to take control of the Charlotte airport out of city hands and put it in the control of yet another regional commission. There were no significant allegations that the airport was being mismanaged, nor were there a large number of citizen complaints about service quality. The best that supporters of this blatant power grab could muster was the argument that a regional governing body can better prepare local aviation for 21st-century demands. No solid evidence for this proposition has been produced.
The airport coup was too much even for McCrory. He brokered a compromise under which the airport’s future would be determined by a blue-ribbon panel dominated by members of the legislature. Not surprisingly, city officials turned this down. Until it was demonstrated that they had done something wrong, they argued, compromise was inappropriate. But shortly before the legislative session ended in late July, both the House and the Senate approved a bill to strip the city of airport control.
I sometimes advertise myself as a believer in devolution, but that’s not precisely correct. What I believe in is decision-making at the least exalted level possible. Except in extreme cases of constitutional defiance, Congress should defer to the judgment of the states. And states should defer to the judgment of cities and counties on matters that relate strictly to local affairs. I realize that what constitutes a state or local issue in this country is a subject of unending debate. But I find it distasteful for higher levels of government to throw their weight around, especially when they are making judgments based more on ideology than on the expressed wishes of the people affected.
It could be that I believe these things so strongly because I’ve never been elected to any office above the neighborhood level. If I had, I might have been unable to resist sticking my nose into the prerogatives of the unfortunate government underneath me.
Just about every public official I know of has been unable to resist it. I used to admire the late Chief Justice William Rehnquist as an advocate of both devolution and the rights of lower-level government institutions. Then Rehnquist joined in the decision overriding the judgment of Florida’s elected Supreme Court and deciding the 2000 presidential election dispute.
Of all the significant concepts of democratic government, devolution may be the one with the greatest gap between theory and practice. It’s a concept that goes back far beyond the founding of the American republic, to the medieval Roman Catholic Church, which held that doctrinal disputes should whenever possible be settled at the level closest to that of the individual worshipers. That was called subsidiarity. It still is. A secular form of subsidiarity remains a fundamental legal tenet of the European Union, which honors it more in the breach than in the observance.
Perhaps, given the events of this legislative year, the time has come to stop mourning the hypocrisies of federalism and to start laughing at them. I was tempted to do this when I first read of the West Virginia home rule law. I had a similar reaction when I noticed that Missouri’s Legislature was simultaneously considering a bill that would nullify federal gun laws and another that would impose financial penalties on local governments that banned smoking. That was happening while Mississippi enacted a law forbidding the state’s localities from restricting the consumption of sugary soft drinks.
In the end, there’s no simple way—perhaps there’s no way at all—to prevent governments from treating those below them as unruly children. Few of us like being ordered around; most of us very much enjoy ordering others around. When we hold political office, we have an opportunity to behave inconsistently in highly visible fashion. In a complex political system like the one that operates in this country, the key players practice a sort of Golden Rule in reverse: Do Unto Others as Somebody One Rung Above Has Just Done Unto You.
Reprinted courtesy of Governing.