Revenge of the Cities: Preemption Pushback By Local Governments Could Put Companies In The Crosshairs

More than 500 city officials from around Florida recently gathered in Orlando for a standing-room-only meeting with the goal of punching back at their own state legislature, a body that, of late, has made a habit of pummeling municipal government. Florida is one of more than two dozen states where conservative “red” legislatures have used what are known as preemption laws to effectively block the policies being adopted by more liberal, “blue” cities. As the New York Times put it recently, “The states aren’t merely overruling local laws; they’ve walled off whole new realms where local governments aren’t allowed to govern at all.”
Throughout the country, state legislatures have approved laws prohibiting local action on everything from minimum wage, to ride-hailing services, to marijuana use, to paid leave, to wireless phone service, to LGBTQ rights, to immigration, to short term vacation rentals and, seemingly, everything in between. There have been preemption laws in 27 states over minimum wage, 21 states over paid leave, 38 over ride-sharing and 42 over tax and expenditure issues, according to the National League of Cities. Some states have even put a ban on bans themselves – it’s now illegal for Michigan cities to ban plastic bags and for Texas cities to ban fracking. As one might imagine, the majority of these local preemption laws are backed by corporate interests seeking to leverage a kill-as-many-birds-as-possible-with-one-stone approach to policy advocacy, rather than working dozens (or possibly hundreds) of policy fights in city halls across the country.
Now, it seems, the “birds” are fighting back in an organized way. From sessions like the one in Orlando being led by state leagues of cities, to the formation of organizations like the Campaign to Defend Local Solutions, to campaigns being led by the U.S. Conference of Mayors and the National League of Cities – local officials are formalizing a collaborative strategy they hope will serve as pushback to the wave of local preemption efforts. The cities’ anti-preemption playbook includes a number of different strategies, both short and long term:
• Educating city stakeholders about the importance of “local control” and making more of them aware of the preemption issue.
• Activating key influencers in cities to advocate against preemption efforts.
• Working through options for cities to sue their own states and to fight different preemption measures in court.
• Tying political support for candidates who run for seats in a state legislature to a written pledge that those candidates (should they become office holders) will not support local preemption legislation.
• Enacting strategies to elect more former local officials to state legislatures (read – people who, at least theoretically, won’t back preemption bills).
• Requiring lobbyists who work on behalf of cities to disclose if they have clients who have utilized preemption – and then, in essence, forcing those lobbyists to choose between representing those cities or their corporate clients.
• Deploying strategies to hold corporate interests accountable by encouraging elected officials to call out “offending companies” (those that are seen as “serial users” of preemption tactics).
That last point is why companies need to pay attention. At the Orlando meeting it’s not just industries, but specific brands, that are called out by name for supporting preemption and, as these local elected officials see it, committing the mortal sin of trying to take away city officials’ ability to govern. The anti-preemption ire is not coming exclusively from Democratic officials, either. “We can’t give these companies a free pass anymore,” was a refrain heard from a group of city commissioners from Florida’s more conservative panhandle.
It’s not clear yet what sort of success these efforts will have at actually blocking or stemming the tide of local preemption legislation. But, what is abundantly clear is that mayors and local officials are building a better, louder, more collective microphone to talk about their fight with state legislatures. And, they’re more and more likely to drag brand names and reputations into that fight.
What’s clear is that companies have plenty of other non-preemption related priorities where they need support and buy-in from local leaders. Those priorities could now be impacted because of local leaders who want to make life more difficult for those brands who have utilized preemption tactics.
And, finally what is very clear is that companies whose businesses are built around local commerce are increasingly likely to find themselves accused of activity that undermines the governance of those cities and towns. Those companies need to think seriously about how they’re going to handle that accusation – and the difficult conversations that follow.
 
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