Takeaways:
- Preemption laws passed at the state level stop local governments from making their own rules on things like minimum wage and housing.
- Big businesses and special-interest groups push want to make sure they only have to follow one set of rules in the whole state, which can stop local areas from taking distinct attempts to address problems in their communities.
- Politicians in red states like Missouri are introducing more preemption laws on a wide range of subjects. Local control advocates see this as an attack on city voters.
If Kansas City had its way, the local minimum wage would run $17 per hour, grocery stores would only use paper bags and you’d need to pass a background check to buy a gun in town.
But politicians and businesses that see these policy ideas as threats to their authority or their bottom lines, shut off all those policies by using their power to block them.
So instead of playing whack-a-mole at hundreds of city council meetings, lobbyists set up camp in the state Capitol to make it impossible for any town to pass certain laws that reflect local sentiments.
For more than a decade, red states like Missouri have stripped cities of their ability to craft local policies on pesticides, tobacco taxes, workplace protections and affordable housing. The rise of “preemption laws” comes from corporations and politicians who want to keep these decisions under their control.
“Cities are on the frontlines of multiple … crises these days,” said Katie Belanger, the lead consultant at the Local Solutions Support Center, which pushes for local control in cities and counties across the country. “Abuse of preemption today is cutting off local elected officials at the knees.”
This year, Missouri lawmakers are considering new preemption laws that would stop cities from banning landlords from discriminating against tenants who rely on government housing subsidies (like the one Kansas City Council passed in January) and from adopting any regulation of Missouri’s pet stores and puppy mills.
A state reaction to local policies
Missouri lawmakers can block your local city council from taking action on a number of fronts.
For years, Missouri’s larger cities with higher costs of living campaigned to raise the state’s $12.30 an hour minimum wage.
In 2015, St. Louis passed an ordinance setting the city’s minimum wage higher than the state’s.
Court challenges meant workers waited two years to see that raise. Then the Missouri General Assembly and Gov. Eric Greitens barred cities from setting their own minimum wage rules.
“A lot of these things happen because the community wants some kind of regulation,” said Richard Sheets, the executive director of the Missouri Municipal League. “Different communities have different problems and different goals.”
Earlier this year, Kansas City followed the lead of St. Louis by banning discrimination against tenants with government rental subsidies.
Now, the Republican majority that controls the legislature wants to undo those local ordinances.
“Discrimination against housing choice vouchers is already a huge problem that is not prohibited federally,” said Mallory Rusch, the executive director of the anti-poverty organization Empower Missouri. “The only line of protection that those folks have right now are local ordinances.”
Rusch pointed to the Republican effort to raise the threshold for initiative petitions to pass. The process has been used to amend the Missouri Constitution to pass policies that are popular with voters but unpopular with conservative lawmakers, like marijuana legalization or Medicaid expansion.
“There is no other way to explain (raising the threshold),” Rusch said, “except for to take more power away from the cities.”
Legislature = One-stop lobbying
States and the federal government have passed laws and issued court rulings restricting local officials since the country’s founding. They’ve been used on the federal level to set minimum standards for how states should operate, and states traditionally have used them the same way to limit local officials.
For example, the U.S. Supreme Court case Shelley v. Kraemer ruled in 1948 that state courts cannot enforce racist covenants that ban Black people from owning houses in certain cities or neighborhoods.
In Brown v. Board of Education, the Supreme Court ruled that state segregation laws were unconstitutional.
Illinois last year passed a law barring cities or school districts from banning books.
Missouri has a preemption law that requires all beer kegs to be tagged with an identification number and recycling information. Another preemption law requires all Missouri massage therapists to have the same licenses across the state.
In states, preemption helps prevent a patchwork of local policies that could create confusion and chaos for state officials or agencies —or for businesses that would otherwise have to meet a dozen different local standards.
But the use of those laws is shifting into new territory, as states pass more restrictions that limit what local governments can do, said Lydia Bean, a senior political reform fellow at progressive think tank New America. The shift creates policy vacuums, where businesses can sometimes operate completely unregulated.
In the past decade, state legislatures have set ceilings rather than floors — limiting how far local politics can trump state law.
“(These states decide,) ‘We’re not going to solve this problem at all,’” she said. “But we’re also not going to let any local cities or counties solve the problem.’”
With a single statewide law, well-heeled interest groups can keep every city and county in a state from making any policy decisions that could hurt their business or water down their culture war wins.
The American Legislative Exchange Council (ALEC) often pens model legislation on behalf of those groups and sends model bills to state lawmakers to carry in their respective capitals.
It shows up in every state. At least 45 states have laws barring local governments from passing firearm regulations. Another 43 states have laws banning local pesticide regulation, while 41 states preempt local regulations on rideshare apps like Uber and Lyft. Another couple dozen states bar local governments from passing laws on youth access to tobacco products like flavored vapes.
“We’ve always had preemption bills because special interests have always tried to preempt local governments regulating over their industry,” Sheets said. “It’s been a fact of life.”
It’s harder for ordinary people to influence state legislatures than to win over their city council members.
A Kansas City resident can testify pretty easily at a City Council meeting. But if somebody wanted to testify in-person in Jefferson City, they’d probably need to take off work and drive two-plus hours each way.
Constituents in a sprawling state legislative district can live more than 150 miles from their state senator or representative.
It’s pretty easy to run into your city council member in church. It’s tougher to bump into your state senator who lives on the opposite end of the district.
“Citizens aren’t stupid,” Sheets said. “They’re going to make their voice heard at the local level — at the grocery store, at church, on the street. If something that is not popular is presented, it typically doesn’t get passed or stay on the books for long.”
Preemption laws pick up steam in red states across the country
Corporate interest groups have found a powerful ally in the Republican Party, which has been gradually consolidating power in statehouses across the country since 2010.
Every year since the 2010 elections, Republicans have controlled a trifecta (the governor’s office and majorities in the state senate and house) in more than 20 states. Neither party has held that much control over state governments for at least three decades.
And those states — which include Missouri since 2017 — use that power to limit local governments in their typically left-leaning larger cities.
A 2017 national analysis of preemption laws from Boise State University found that most often, preemption laws are used in Republican-led states that have cities with more liberal viewpoints.
“Preemption is a key tool to stifle local innovation and maintain state power,” the report found. “In other words, as states are being pushed by local governments, they are responding by curtailing local authorities in the hopes that it will stop (or at least slow) adoption of progressive policies.”
Local governments can be an important place for politicians to experiment with different policy ideas because they have more flexibility, Sheets said.
A state legislature, on the other hand, might meet for only five months out of the year. And with the Missouri Freedom Caucus disrupting the legislature’s ability to pass bills — even Republican-sponsored ones — those roadblocks make it all the more difficult to remake laws.
“City councils can pass ordinances and laws that don’t work and need to be fixed,” Sheets said. “(Those laws) can be fixed really quickly. But at the state level, when they pass legislation into law that’s wrong, it takes probably eight years to fix it.”
Advocates for local control see state limits on local power as an attack on the most diverse areas of the state,like Kansas City and St. Louis, where city councils and boards are more likely to take actions they see as moves toward racial justice, workers’ rights and affordable housing.
“It’s part of a broader effort to target specific communities and erode our democracy,” Belanger said. “We see abuse of preemption as part and parcel with gerrymandering, court-stacking, eroding voting rights and limiting direct democracy with citizen-led ballot initiatives.”
