Tag Archives: home rule

When We Talk About “Systems” And “Structures”

Speaking of communication, as I did yesterday–Sometimes, it’s a good idea to define your terms.

I’m as guilty as anyone–I sometimes use terms without stopping to specify what I mean. In the interests of clarity, today I’m defining three structural labels that I use frequently–terms that identify aspects of America’s political environment that it’s past time to revisit and revise.

Federalism

Federalism is the name given to America’s division of authority among local, state and federal levels of government. That division recognizes realities of governance: state and federal governments have no interest in handing out zoning permits or policing domestic violence disputes, to cite just two examples. Increasingly, however, many original assignments of responsibility are no longer workable. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to chaos and misconduct.
Federalism also facilitates assertions of state sovereignty where there really is none. Federal highway dollars are conditioned on state compliance with federally mandated speed limits, and similar “strings” are attached to almost all of the federal funding that cities and states rely upon. There are also an increasing number of issues, including climate change and pandemics, that must be addressed globally.

Businesses need uniformity in state laws in order to operate efficiently across state lines. Problems with acid rain can’t be solved by municipal ordinance. The internet cannot be controlled by a state legislature–or even by Congress. Even in law enforcement, generally considered the most local of issues, multistate criminal enterprises justify an increased federal presence.
 
The world has changed since the Constitution was drafted. Today, where should authority for governmental responsibilities reside? What should federalism mean in the age of technological connectivity and globalism?

Home Rule

Despite the existence of an Indiana statute labeled “Home Rule,” efforts at self-government by Indiana municipalities are routinely pre-empted by the Indiana Legislature. Just in the past few years, lawmakers have prevented local governments from restricting the use of disposable plastic bags and dictated what modes of public transit cities are permitted to use and tax themselves for. In a particularly ironic ruling, a Judge found that the state’s Home Rule statute itself blocked Ft. Wayne’s enforcement of a “good government” ordinance intended to restrict “pay for play” politics. The ordinance would have limited the amount of money owners of a company could give elected officials and still bid on city contracts.

In Indiana, the absence of genuine home rule means that decisions affecting residents of urban areas are routinely made by representatives of suburban and especially rural populations (see gerrymandering), whose grasp of the challenges and realities faced by elected officials in metropolitan areas is limited, at best.

Indiana is not unique. The Brookings Institution has described the extent to which state laws preempt local control over public health, economic, environmental, and social justice policy solutions. In 2019, 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.
 
There are clearly issues that should be decided at the state or federal level. (See Federalism) Policy debates should center on what those issues are, and state-level lawmakers should to allow local governments to make the decisions that are properly local. Right now, they can’t.
  

Gerrymandering

Every ten years, the Constitution requires that a census be taken and the results used to remedy population discrepancies in the succeeding year’s congressional redistricting.

In our federalist system, redistricting is the responsibility of state legislatures. Gerrymandering, or partisan redistricting, occurs when the party that controls a statehouse manipulates district lines to be as favorable as possible to its own electoral prospects. “Packing” creates districts with supermajorities of the opposing party; “cracking” distributes members of the opposing party among several districts to ensure that it doesn’t have a majority in any of them; and “tacking” expands the boundaries of a district to include a desirable group from a neighboring district.

Partisan redistricting takes its name from then-governor of Massachusetts Elbridge Gerry.

Studies have tied gerrymandering to the advantages of incumbency and to partisan rigidity, but by far its most pernicious effect has been the creation of hundreds of Congressional seats that are safe for one party. The resulting lack of competitiveness reduces the incentive to vote or otherwise participate in the political process, because the winner of the district’s dominant party primary is guaranteed to win the general election. Primary voters tend to be more ideologically rigid, and as a result, candidates in safe districts are significantly more likely to run toward the extremes of their respective parties. Gerrymandering is thus a major contributor to partisan polarization.

Thanks to the way gerrymandered districts have been drawn in Indiana, a majority of policymakers in the Statehouse represent predominantly rural areas. As a consequence, state distribution formulas that allocate funding for roads and education significantly favor rural areas over urban ones, and members of Indiana’s General Assembly are more responsive to rural than urban concerns.

When I use these words, this is what I mean.

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Games Indiana’s GOP Plays…

Oh, Indiana!

Ours is a state so gerrymandered that control of our legislature remains firmly in the hands of a Republican super-majority. To say that the lack of competition has given us state lawmakers who reflect the party’s ideological extremes would be an understatement.

So what is the “World’s Worst Legislature” (h/t to the late Harrison Ullmann) doing this year?

Well, our lawmakers are no longer trying to change the value of Pi, which I suppose is progress of a sort. What they are trying to do is keep Indiana utilities from phasing out their dependence upon coal;  persisting in their efforts to elevate the rights of fertilized eggs over the rights of women; refusing to fund election security measures; and demonstrating their ignorance of the separation of powers.

There has been a bill protecting religious mental health workers who deny emergency assistance to those they consider “sinners” and another prohibiting athletes who were born male from competing against cis women in sports. Another “protective” measure would prevent employers from implanting chips in their workers (a practice not currently occurring in the state, but hey! It might happen, so let’s talk about that rather than the very real problems we face.)

The majority is also moving new legislation to create a “cross-check” bill to facilitate the purging of (certain) voters, after a previous effort to do so was struck down by the courts as blatantly unconstitutional.

And of course our legislators are continuing to divert resources from the state’s public education system in order to prop up the religious institutions that make up some 95% of “voucher” schools.

But absolutely the most consistent legislative behavior, year after year, is the General Assembly’s adamant refusal to allow cities and towns to do–well, pretty much anything— unless and until their overlords in the legislature deign to give local elected officials their official blessing. (Especially Indianapolis, which the Republicans who represent mostly rural districts irrationally resent.) It took three sessions for Indianapolis to get permission to hold a referendum on whether to tax ourselves to improve public transit, and then only on condition that we not include light rail. Why no light rail? Who knows? And this session, legislators continue to offer roadblocks to planned expansion of the city’s rapid transit lines.

The most recent–and arguably this session’s most egregious–example is the legislature’s move to foreclose Indianapolis’ effort to protect tenants from landlord abuses. Even the Indianapolis Star was offended.

Mayor Joe Hogsett’s proposal to provide more protections to Indianapolis renters now faces an uncertain future.

Indiana lawmakers added language to a bill Monday that would prevent any city from regulating landlord-tenant relations without approval by the General Assembly, including at least two key items in Hogsett’s proposal: requiring landlords to notify renters of their rights and responsibilities, and fining landlords who retaliate against renters for reporting problematic housing.

Senate Bill 340 initially moved through the Indiana Senate as a bill addressing laws about condemned properties. An amendment added at the Republican-controlled House Judiciary Committee, though, would undercut a legislative priority of Hogsett, a Democrat, now in his second term as Indianapolis mayor.

The Hogsett administration saw its proposal as a way to balance the scales against unscrupulous landlords, many out of state, who take advantage of lax government oversight in Indiana to prey on desperate renters.

Any lawyer who has practiced real estate law in Indiana– I am one–is aware that Indiana law is heavily weighted in favor of landlords. (I’m sure this favoritism has nothing to do with the fact that the tenants who are disadvantaged by our legal framework are far less likely to be political contributors than their landlords.)

When this year’s (mercifully short) session comes to an end, we’ll see what passed and what didn’t. But one thing we can predict with confidence: local jurisdictions still won’t have anything that looks remotely like home rule.

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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…..

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A Good Try, Fort Wayne

A recent newspaper article reported on the demise of a “controversial” Fort Wayne ordinance–another victim of Indiana’s lack of genuine (or even pretended) home rule.

The ordinance (which in a fair and honest world should not have been controversial) addressed the common political practice called “pay to play,” the cynical shakedown of people who want to do business with local government.

In her 13-page ruling, Judge Jennifer DeGroote blocked the city from enforcing the ordinance that restricted how much money the owners of a company could give elected officials and still bid on city contracts.

The ordinance forbid any company from bidding on a city contract if any owner, partner or principal who owns more than 10% of that company gave more than $2,000 to the political campaign of a person with responsibility for awarding contracts.

“The city of Fort Wayne attempted to address legitimate concerns regarding quid pro quo exchanges or pay to play arrangements that tie contracts for professional services to contributions made to elected government officials who have authority to influence the awards of such business,” DeGroote wrote. “However, the court finds that efforts by Fort Wayne, as well-intentioned as they may be, to address such practices in the 2018 ordinance is not permitted under current Indiana law as no such authority has been extended to municipalities.”

Specifically, DeGroote’s ruling stated that the ordinance was superseded by state law, specifically the Home Rule Act, which grants municipalities the ability to self-govern in areas not covered by the state. Elections, under state law, are the domain of the Indiana Election Commission.

Every time I see a reference to Indiana’s “Home Rule Act,” I snicker. The title belongs with other dishonest efforts to turn sows’ ears into silk purses. (George W’s “Clear Skies Act” comes to mind.) In reality, Indiana’s cities and towns operate under numerous onerous restrictions, forcing municipal policymakers to “kiss the rings” of state lawmakers in order to do much of anything.

One recent example: Indianapolis had to beg the General Assembly for permission to hold a referendum to determine whether we could tax ourselves to improve our mass transit system. It took three years, and even then, our state overlords prescribed permitted and forbidden modes of transit that they would allow us to consider paying for.

Fort Wayne’s effort to clean up an unsavory and unethical fundraising practice ran afoul of the reality that governance in Indiana operates under the heavy hand of an excessively gerrymandered state legislature.

There are two lessons here: First–as many of us have said repeatedly– Indiana really, really needs genuine home rule. And second, laws patterned after Fort Wayne’s rejected ordinance should be statewide. (Nationwide, actually.)

Perhaps a legislator from Fort Wayne–or anywhere– could introduce a similar measure during the next session of the General Assembly. It wouldn’t pass, of course, but it might shine a light on just how corrupted the process has become.

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Blue City, Red State, Home Rule

In the wake of Amazon’s choice of location for headquarters #2 (and the announcement that it was breaking the choice into two, one to be located in Queens and one in Crystal City–essentially, Washington, D.C.), Robert Reich wrote a provocative essay for Newsweek.

What does Amazon’s decision have to do with America’s political tumult? Turns out, quite a lot.

Amazon’s main headquarters is in Seattle, one of the bluest cities in the bluest of states. New York and metropolitan Washington are true-blue, too.

Amazon could have decided to locate its second headquarters in, say,  Indianapolis, Indiana. Indianapolis vigorously courted the firm. It’s also a Republican city in a bright red state.

Actually, Indianapolis–like every other sizable city in the country–is unambiguously blue. But we are located in a very, very red state.

Reich’s main point was that technology is a process of “group learning,” and it advances best in geographical clusters. Those clusters are primarily found along the coasts, where the digital economy has been a real boon. But Reich says that economy has left behind much of the rest of the country, with the result that we are facing what he calls “the widening inequalities of place.”

As money pours into these hubs, so do service jobs that cater to the new wealth—pricey lawyers, wealth managers, and management consultants, as well as cooks, baristas, and pilates instructors.

Between 2010 and 2017, according to Brookings, nearly half of the America’s employment growth centered in just 20 large metro areas, now home to about a third of the U.S. population.

Relative to these booming hubs, America’s heartland is becoming older, less well-educated, and poorer.

I think the reality of “America’s heartland” is more complicated than Reich recognizes. And that takes me back to his mistaken assumption that Indianapolis is a Republican city.

Cities in even the brightest red states have been blue for some time. We form what has been dubbed an “urban archipelago.” Furthermore, the inhabitants of these cities are engaged in a multitude of creative place-making, job-creating and poverty-reducing efforts.

Here in Indianapolis, for example, Community Development Corporations partner with the City, the Chamber of Commerce and a variety of nonprofit organizations to improve transit, health, education and job training, and to remove barriers to self-sufficiency. People may disagree about the likely efficacy or unintended consequences of this or that initiative, but the range of activity–and the good will motivating it–is impressive.

Indianapolis’ problem (which is not shared by every blue island swimming in a rural sea of red) can be found in Reich’s second descriptor: our red state. It isn’t Republican control of Indiana that’s the problem; it’s the fact that we are a state in which there is no meaningful home rule. Public officials in Indiana cities must go hat-in-hand to the state legislature (currently governed by an unimaginative GOP super-majority) to pursue many of the policy initiatives that other cities have authority to pursue as a matter of course.

Want to charge extra for plastic bags? No can do, sayeth our legislative overlords. In just the last few years, the Indiana legislature has also prevented cities from setting local minimum wages, and  from regulating housing, agricultural operations and worker schedules, among other things.

Perhaps the most egregious example of legislative arrogance involved Indianapolis’ proposal to tax ourselves to upgrade our inadequate transit system. It took three years just to get the legislature’s permission to hold a vote on the matter, and even then, the enabling legislation prohibited us from considering light rail. Why? Who knows?

As a column in the Indianapolis Star noted,  

A move to preempt local rules for services like Airbnb failed to get out of the Indiana House, but it was a rare setback for the never-ending march to scale back home rule. This year legislators successfully banned local zoning rules for certain utility poles and undermined so-called “good neighbor ordinances.”

(“Good neighbor” ordinances hold tenants accountable when they repeatedly inflict crimes and nuisances on their neighbors.)

The attorney who authored the column shared a number of other examples, and made a compelling case for giving greater authority to the people elected to govern municipalities.

The lack of ability to make our own decisions, based on the needs of our own residents, isn’t just making us less competitive for Amazon-sized sweepstakes.It is preventing us from improving everything from education to infrastructure to the quality of life in our city. Legislators who mostly represent the Indiana hinterlands consistently prevent us from reaching our full potential as a thriving urban oasis in a rural state that isn’t doing so well.

Urban residents of Indianapolis suspect that’s intentional.

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