The Hidden Hand

When I hear the term “hidden hand,”  I immediately think of Adam Smith. But a couple of weeks ago, I came across a very different definition of that term–one that resonated with me.

Published by a think-tank called “Support Democracy,”the article addressed the growing problem of pre-emption, which it dubbed “the hidden hand.” In Indiana, we’ve had that problem as long as I can remember; it’s what I fulminate about when I decry local government’s lack of home rule.

Many of America’s cities, towns, and counties have less power than they did at the start of the year to protect the health and safety of their communities or to respond to the unique needs and values of their residents. That’s because between January and June 2019, state legislatures across the nation continued a troubling trend of passing more laws forbidding or “preempting” local control over a large and growing set of public health, economic, environmental, and social justice policy solutions. This legislative session, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.

Some states this session went further, with bills aimed at abolishing core powers long held by cities, including their ability to negotiate and set employment terms with their own contractors, enact and implement local land use laws, and control their own budgets and finances.

Here in Indiana, local jurisdictions have long been under the thumb of state lawmakers. The same legislators who bitch and moan about “unfunded mandates” imposed on state governments by Washington blithely operate on the assumption that they know better than the folks running city and county jurisdictions how those officials should do their jobs.

Are there issues that require federal mandates? Sure. Are there issues that ought to be handled consistently statewide? Of course. But the policy debate should center on what those issues are–and it rarely if ever does. Instead, we have the Indiana General Assembly deciding what vehicles Indianapolis can include in our locally-funded mass transit plans (no light rail for us–why, no one can explain).

It’s bad enough that a former Governor whose political savvy outstripped his devotion to rational policymaking (yes, Mitch, I’m looking at you) shoehorned a tax cap into the state constitution. That certainly made him popular. It has also destroyed the ability of local governments to provide appropriate levels of basic services. (Not to mention that provisions of this sort don’t belong in constitutions, which are by definition frameworks prescribing how issues like taxation are to be dealt with.)

State and local governments desperately need to revisit the allocation of power between them. In states like Indiana, state-level lawmakers need to allow local governments to make the decisions that are properly local.

As the report at the link explains,

Preemption is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption was used to ensure uniform state regulation or protect against conflicts between local governments. Preemption has also been used to advance well-being and equity. State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law. Traditional preemption emphasized balance between the state and local levels of government. While state policy still had primacy, according to Columbia Law School professor Richard Briffault, it was understood that “state policies could coexist with local additions or variations.”This is not what we are seeing now.

“New Preemption” laws, according to Briffault, “clearly, intentionally, extensively, and at times punitively, bar local efforts to address a host of local problems.” Some of this is propelled by a disdain for local lawmaking and urban lawmakers seen as too liberal, intent on “oppressing” the free market and “trampling” on individual liberty…. Another primary driver of new preemption is the opportunity conservatives now have to deliver on a long-promised anti-regulatory agenda – an agenda that disproportionately and negatively affects women, people of color and low income communities. These new preemption laws are being used to prohibit local regulations without adopting new state standards in their place, effectively preventing any regulation or policy remedy at all.The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy often driven by trade associations and corporate interests. Much of this effort has been orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization made up by lobbyists and a quarter of all state lawmakers that writes and distributes model bills.

In my most recent book (which I shamefully keep hyping) I make a case for revisiting federalism, and ensuring that control of issues is lodged with the appropriate level of government.

I doubt I’ll live long enough to see that happen…..

12 thoughts on “The Hidden Hand

  1. I was shocked to learn of pre emption and it’s use regarding gun laws in Indiana. These uses of the laws are terrible

  2. “Here in Indiana, local jurisdictions have long been under the thumb of state lawmakers. The same legislators who bitch and moan about “unfunded mandates” imposed on state governments by Washington blithely operate on the assumption that they know better than the folks running city and county jurisdictions how those officials should do their jobs.”

    Here in this “Honest To Goodness, Indiana” bright red Republican Bible Belt state; it amazes and appalls me that the state level actions effect thousands of Indiana Republican residents and those same staunch Republican residents repeatedly reelect the same political figures at all levels and continue to whine, cry, piss and moan about their situation in life.

    “State and local governments desperately need to revisit the allocation of power between them. In states like Indiana, state-level lawmakers need to allow local governments to make the decisions that are properly local.”

    Apparent life-time elected officials such as Brian Bosma (34 years and counting) have long outlived their usefulness, IF they were ever actually useful to their constituents. Unless and until the local level old men lawmakers are voted out; we will remain in limbo.

    “State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law.” Insert the local example of Pence’s RFRA and his personal religious and antiquated anti-abortion laws here; he has promised to take them to the federal level…reversing the “hidden hand”?

  3. Flack away, Sheila. If you don’t hype your books, who will? The publishers want you to do their jobs for them.

    Isn’t it one of the Republican mantras referencing ABSENCE of government influence on our lives? I’ve been dinged for bad-mouthing Republicans on this blog. Well, here is yet another instance of abject hypocrisy by Republican-led legislatures. They are WANTING to employ fascism in government. They’ve been lying to us since Lincoln was shot.

  4. Unlike Smith’s “Invisible Hand,” which does not now (and like the “free market”) never existed, Sheila’s Hidden Hand exists, and is growing. I think it is growing in red states, especially those with legislative super majorities, as corporations via ALEC and campaign contributions give the heave ho to what we used to call Home Rule, an idea that has joined Invisible Hand and free market mythology. Virtually all corporations are state-chartered, so unlike Delaware and Oklahoma who compete with one another for the least corporate governance in order to attract home office designations, perhaps progressives should agitate and (someday) change state corporate governance rules for chartering of corporate enterprises to include limits on their political activities, though such an attempt would have to be carefully worded to avoid the “corporations are people” language of Citizens United v. FEC.

    The ultimate answer to corporate control of legislative efforts is, obviously, to elect progressives who would tell corporate lobbyists where to go. Perhaps, in time, we could convince Republicans that their representatives are captive not of Republican core values but rather corporate values and facilitate a change in elective personnel. Perhaps.

  5. It is indeed amazing how we keep an advancing ideas that are basically undemocratic in the pursuit of democracy. This is undoubtedly gone on for quite some time but it is reached its zenith banks to the work of ALEC and other like-minded think tanks whose ideologically biased staffs apparently feel that they can ride roughshod over the most basic elements of what we continue to optimistic call democracy. Perhaps if those that are continually elected to the state legislative level weren’t so freaking lazy and we’re capable of drafting legislation on their own perhaps he would have this problem – I stress the word perhaps.

    It’s pretty sad when you look at what Republican led state governments across the country are doing and find that the all their more controversial and ideologically doctrinaire legislation all comes from the same source. While realizing that most citizens do not take the time nor have the inclination to keep track of what local government is doing (and I count myself among them since my focus is normally international) having a single source for everything is a bad idea and a lazy one at that.

    Who ceded to ALEC the responsibility of formulating legislation nationwide and even more so when such legislation is ultimately both counterproductive and trumps (pun intended) the legitimate wishes of the people? Still another example of what corruption and what that silent hand you have referred to Sheila continually at work is doing to this country and our chances once again of having a viable and vibrant political system that is responsive to the needs of the people and not special interests.

  6. Vanessa – You have a right to be shocked. Gun laws for Indianapolis and Podunk Junction are treating different situations, and preemption (aka legislative dictatorship) doesn’t distinguish, as in, we’ll let you know what ordinances you can or can’t pass. It’s as though state legislatures are playing the British role of subjugation of their colonies which caused Jefferson to pick up his plume and call for political equality. Where are the Hoosier Jeffersons today? GRRR!

  7. Good article in the Guardian:
    In Democracy in America, Alexis de Tocqueville offered a prescient warning for “the friends of democracy”. In a chapter called “How Aristocracy Could Issue from Industry” he observed that industrial capitalism would create economic inequality between owners and wage-workers and divide them culturally, morally, and socially.

    With the rise of industrial capital, Tocqueville feared there would be no genuine relationships between these two emergent classes. “If ever a permanent inequality of conditions and aristocracy are introduced anew into the world, one can predict they will enter through this door.”

    This creates a vicious cycle in which the wealthy and corporations can rig the political rules to benefit themselves. And the rigged system only makes them wealthier and more powerful. The danger of “a permanent inequality of conditions and aristocracy” is upon us.
    https://www.theguardian.com/commentisfree/2019/aug/30/democracy-capitalism-progressive-era-gilded-age

    Back in the days of the ancient Roman Empire, the Praetorian Guard and Army Commanders discovered they could determine who the Emperor would be.

    Today, Wall Street and the 1% determine who will lead us through their control of the campaign finance system. The GOP has succeeded with various subterfuges: gerrymandering, voter suppression and appeals to the religious right to maintain power.

    The governing philosophy for the 1% and Wall Street is to control all levels of government through their puppets. These puppets and stooges can be Republicans or Democrats.

  8. Yes, ALEC (which was created by the billionaire Koch brothers) doesn’t want the government regulating their right to make billions more through pollution and refusal to protect public health and safety. What’s a few thousand or tens of thousands of lives and property values compared to the Kochs’ rights to more and more and more profits.

  9. The history of humans is the struggle between liberal democracy and aristocracy, the decision between all of the governed having an equal say in who governs and how, or the acceptance of a ruling class with the right and responsibility to impose what they believe is best on and for the governed. The simplest of civic principles.

    The more I talk to those who don’t recognize that fundamental at work in the present US government between Democrats and Republicans the more I see those whose civic literacy came not from education but several decades of entertainment media paid for by somebody and the most obvious guess is by would be aristocrats.

    Have we already lost the fundamental freedom of liberal democracy? It’s very possible that we have.

    Freedom is based on rights and responsibilities and the authority of the collective as the alternative to power based on the authority of an aristocracy. This time anyway like some of the other times the same threat loomed it’s been sold to those who are supporting it by demonizing other “tribes” as a threat to the entitlement of a, or a few, chosen tribes which is irresistible bait to authoritarians who believe that their way is the only way.

    In 2020 only liberal democracy still offers us a choice. If we fail that test I fear that aristocracy will have claimed another victim country. Perhaps we will be tested over and over again and the barrage of advertising/fake news/propaganda/brainwashing will continue with increasing ferver. In fact probably that’s the future that we as a country face. But the journey of a thousand miles begins with a single step and that step is ours to decide now. The next steps will be determined by the success or failure of that one.

  10. Republican motto – the government that is closest to the people governs best, unless it is controlled by Democrats – oh heck, the government controlled by the “right” kind of Republicans governs best [full stop]

    There are also the Republicans that believe that the states should have all of the power, just like under the highly successful Articles of Confederation.

    The real problem is the asymmetric symmetry –

    Republicans are happy to prevent cities (or states) from stricter gun legislation, environmental and business regulations, but are happy if they are “harder on crime” and meaner to the poor, to immigrants, women and minorities

    Democrats are willing to prevent cities (or states) from looser gun legislation, environmental or business regulations, but are happy if they are more generous to the poor, etc. (of course, we call that “human decency” and “protecting human rights”)

    This boils down to my mother’s old adage – “they” care about things and use people; “we” care about people and use things.

  11. alec,heritage foundation,and the grooming of the right,to learn to speak,without being heard.many of these think tanks are controled,and administered by those who have a all or nothing mentality..Mcconnels crap anyone? seems its not just the right,but at least the left leaves some room. the republicans have administed law as they now see it. and alec is the grindstone. the passing of good ol dave, will now see who is next. preemptive legislation really has no place in America,or its democracy. seems we still allow those who speak in congress,as they say in the movies,with forked tongue,to still stand and speak. obviuosly the debates are worthless,and so are the meet and greets,time for a dialogue with every political wanna be,or gonna be,to put it all on the table. we know things change,but while in congress,they stand on their record,or get immediatly censored,or recalled by their constituents..far to few of us,take time to listen much less be a part of the discussions. after all this crap over the last 19 years,it time to change,demand the hack perform as directed by the many,not like mcconnel,where they assume,thats why they were elected…time for change,and its time we have a signed and on record answers to every lawmakers actions,immediatly..best wishes. please rememebr why and how,labor day became a holiday…

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