Renegade Cities, Public Policy, and the Dilemmas of Federalism 9781626374850

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RENEGADE CITIES, PUBLIC POLICY, AND THE DILEMMAS OF FEDERALISM

RENEGADE CITIES, PUBLIC POLICY, AND THE DILEMMAS OF FEDERALISM

Lori Riverstone-Newell

Published in the United States of America in 2014 by FirstForumPress A division of Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.firstforumpress.com www.rienner.com and in the United Kingdom by FirstForumPress A division of Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2014 by Lynne Rienner Publishers, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data Riverstone-Newell, Lori, 1971– Renegade cities, public policy, and the dilemmas of federalism / Lori Riverstone-Newell. Includes bibliographical references and index. ISBN 978-1-935049-88-3 (hc: alk. paper) 1. Municipal government—United States. 2. Community power—United States. 3. Social advocacy—United States. 4. Central-local government relations—United States. 5. Federalcity relations—United States. 6. Federalism—United States. I. Title. JS348.R58 2013 320.8'50973—dc23 2013030241 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. This book was produced from digital files prepared by the author using the FirstForumComposer. Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2 1

For Matthew

Contents

List of Tables and Figures Acknowledgments

ix xi

1

When Local Activism Challenges Higher Authority

2

The Evolving Power of Cities

21

3

The Evolving Intergovernmental Environment

43

4

Today’s Urban Environment

67

5

Activism as a Strategy for Policy Change

85

6

Lesbian, Gay, Bisexual, and Transgender Rights Activism

115

7

Immigration Activism

147

8

Foreign Policy Activism

173

9

Reexamining the Role of Local Governments

197

Bibliography Index

1

203 221

vii

Tables and Figures

Tables

2.1 U.S. Urban and Rural Population: 1790–1910 for Selected Census Years

22

5.1 Population Distribution of All Localities Engaging in Activism

102

5.2 Activist Events by State

104

5.3 Localities and Total Events by Census Division

106

5.4 Most Active Localities by Number of Events, 1980–2010

108

5.5 Distribution of Activist Events by Census Division

109

5.6 Activism by Form of Local Government

110

6.1 Comparison of Anti-LGBT Localities in Oregon with State and National Figures

127

6.2 Comparison of Activist LGBT Localities

129

6.3 Distribution of Supportive and Unsupportive LGBT Activism by Census Division

131

7.1 Distribution of Immigration Activism by Census Division

155

7.2 Characteristics Comparison of Local Immigration Activism with U.S. Municipalities

156

8.1 Distribution of 1980s Foreign Policy Activism by Census Division

179

8.2 Selected Characteristics of Localities Engaging in 1980s Foreign Policy Activism

180

8.3 Distribution of Cities for Peace Activism by Census Division

183

ix

x

Tables and Figures

8.4 Selected Characteristics of Localities Engaged in Cities for Peace Activism

184

8.5 Geographic Distribution of Localities that Acted in Two or More Foreign Policy Areas

185

Figures

5.1 Local Capacity/Urgency Model

94

5.2 Geographic Distribution of Local Activism

103

7.1 Geographic Distribution of Punitive Immigration Activism

151

7.2 Geographic Distribution of Supportive Immigration Activism

154

8.1 Geographic Distribution of Foreign Policy Activism in the 1980s

177

8.2 Geographic Distribution of Cities for Peace Activism

184

Acknowledgments

I am grateful to my husband, Matthew, and my beautiful children, who sacrificed their time, needs, and expectations to allow me to accomplish this task. Thanks to my editor, Jessica Gribble, for your patience, support, and friendship. I received much support from Ali Riaz, Lane Crothers, Bob Bradley, and Carlos Parodi. Lane, your mentorship and direction were invaluable. My graduate assistant, Dan Thetford, slogged with me through the discovery phase of this project, never complaining and always producing quality work. Thanks to the anonymous reviewers for your time and criticism. Finally, thanks to all who participated in the Midwest Political Science Association and American Political Science Association conference sessions where I first introduced this topic. Your encouragement and ideas gave me the confidence to carry on.

xi

1 When Local Activism Challenges Higher Authority

In March 2011, the town of Sedgwick, Maine, population 1,196, became the first in the nation to declare itself to be “food sovereign”—fully capable and within its rights to grow and sell food without state or federal inspections, among other regulations.1 “The primary goal of the ordinance is to exempt local farm products from [state and federal] licensure and inspection if the products are only going to be sold by the producer directly to a willing consumer.”2 The ordinance, voted into law at a town meeting, proclaims the town to be “duty bound under the Constitution of the State of Maine to protect and promote unimpeded access to local foods” and that it is “unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.”3 Notably, since 2011, at least thirteen towns in nine states, from Maine to California, have since passed similar ordinances. Bills like that passed in Sedgwick have been unsuccessfully introduced in several states.4 Congress’s Food Safety Modernization Act of 2010, known among some local food sovereignty supporters as “the Patriot Act for food” generated this activism.5 Many small farmers believe that the Act, meant to “enhance the safety of food produced in America and imported from overseas, and to prevent food-borne illness”6 threatens their livelihood by potentially subjecting them to expensive regulations. They are particularly worried about sections that may prevent the sale or gifting of locally grown foods and meat and dairy products. Says Deborah Evans, one of the crafters of Sedgwick’s ordinance, There’s a possibility that the homemade church pies and baked beans brought and shared to church outings and firemen’s picnics could be banned by the federal government’s rules. They say such items would

1

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

be “grandfathered” but could we really take them seriously? Or is it an effort to ensure that such items would need to be purchased at WalMart or wherever to be brought to such events? By fighting to preserve the right to purchase and consume the local food we’ve enjoyed for 200 years, we can begin to take back our other rights as well!7

Local autonomy and power within the American intergovernmental system has evolved over the past three hundred years. Localities have shifted from autonomous, relatively isolated governments to subordinate units, subject to state and federal demands and interference. At the same time, they are “mini-sovereigns,” semi-autonomous units that are legally and politically responsible to their local constituents for an array of services and functions.8 This “contradictory status”9 of localities— administrative unit and mini-sovereign—looms large, affecting local capacity, decision-making, and implementation plans. Nevertheless, they are not powerless. Local leaders, like other governments within the intergovernmental system, strategize and act politically in order to protect their interests and influence other governments, even higher governments, to their liking. When diplomatic strategies—bargaining, negotiating, and so forth—fail to generate the desired response, local leaders sometimes engage in activism by using their positions of authority to purposefully—pointedly—challenge the authority of higher governments. Local activism has the potential to stimulate policy change by engaging the public and the media. In this book, we define local activism as official acts of defiance that can reasonably be understood as deliberate attempts to spotlight unfavorable higher laws and policies in order to engage the media and “expand the scope of conflict” to the public.10 With sufficient exposure, higher government leaders are pressured to reconsider, or at least defend, their policy positions. Activism has been used to influence a variety of foreign and domestic policies since the early 1980s. Several high-profile cases of local activism have captured national attention; indeed, some of these cases have successfully generated a favorable response from higher governments or the courts. Recall, for example, San Francisco’s licensing of same-sex marriage in 2004. Gavin Newsom, the city and county’s former mayor, issued an executive order permitting same-sex couples to legally marry. This order defied state law, which defined marriage as a union between one man and one woman. As a result, the constitutionality of same-sex marriage bans was presented to federal courts. With a recent decision in favor of same-sex marriage recognition

When Local Activism Challenges Higher Authority

3

by the Ninth Circuit Court of Appeals, the issue is currently before the United States Supreme Court.11 While the San Francisco gay marriage case is unusual in its impact and visibility, it is not an isolated event. Across the nation, localities large and small have attempted to signal their preferences and provoke policy movement by enacting thousands of ordinances, resolutions, and executive orders in policy areas reserved to state and/or federal purview. The range of issues targeted for activism is wide. Some of the earliest cases involve national foreign policy: The nuclear-free zone movement, divestment of local funds from firms conducting business with or in South Africa, and the sanctuary city movement of the 1980s— a response to the Reagan administration’s support of Central American authoritarian regimes and the Contra rebels in Nicaragua—involved more than 1,000 localities across the nation.12 More recently, local governments have generated over 400 resolutions opposing the USA PATRIOT Act (Patriot Act); several localities have enacted ordinances criminalizing participation with the Act’s enforcement.13 In addition, at the close of 2007, over 270 localities had passed resolutions protesting the war in Iraq.14 Controversial social matters have been targeted for local activism as well. For example, local gun control efforts produced more than 50 ordinances leading up to the U.S. Supreme Court decision District of Columbia v. Heller. Also, in contrast to the estimated 100 local policies meant to deter undocumented immigrants that were active in 2010,15 120 policies in other communities restrained city employees—including police—from ascertaining and/or reporting an individual’s immigration status to the federal government.16 An estimated 100 resolutions, executive orders, and ordinances—both supportive and unsupportive— have addressed same-sex couples’ rights since 1980.17 Examples of other policy areas targeted by local activists include medical marijuana, living wages, the placement of cellular towers, Kyoto environmental protocols, and corporate personhood. Food sovereignty is the most recent effort. What compels local leaders to activism? Why choose activism to stimulate policy change rather than a less confrontational, more diplomatic, approach? The limited legal status of localities in the United States sets the stage: As Iowa Judge John F. Dillon put it in 1868, localities are “mere tenets at the will of the legislature,” unable to exercise any powers not specifically granted by their states.18 As “creatures of the states,” localities are devoid of the sovereignty and protections that state and national governments enjoy. They are,

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

according to David Berman, legally “no better off than conquered provinces.”19 Because of their legal subordination, localities are highly disadvantaged in the intergovernmental arena. They are on the “asking side,” unable to impose their will upon state or national governments. This subordination is “an invisible force operating in the background,”20 a force that compels local governments to maintain vigilance and to strategically defend and promote their interests against the actions of other governments. As a consequence of this political weakness, dissenting localities have only a few means with which to attempt to promote policy changes at the national and state level. Local activism is one. While this book focuses primarily on the actions of municipalities, it is important to note that some counties are involved in local activism, as well. Counties are local governments by definition, although their historical purpose and behavior has generally reflected their original purpose—to serve as an arm of the state. The recent use of activism by a number of U.S. counties suggests a changed relationship between the states and their “arms,” or perhaps a change in the function and responsibilities of counties, generally.21 Indeed, recent budget cuts, mandates, and the devolution of responsibilities to localities have often affected counties in similar ways as cities. As a result, counties have become more entrepreneurial, professional, and fiscally independent. With these changes and improvements, it follows that some county leaders have pushed back against higher government action and inaction. Again, we focus primarily on municipalities in this work, but it is important to note that a growing number of counties may be facing similar circumstances as cities—particularly economic— and, because of this, resistance to their states and to the national government may be rising, as well. The remainder of this chapter argues that while localities are limited units of government, they are also energetic and self-interested political actors.22 They are open systems, vulnerable to external forces, but they also turn to external forces—including their higher intergovernmental “partners”—for necessary resources, autonomy, and authority. Activism is introduced within the context of recent changes to the intergovernmental arrangement wherein localities remain subordinate, yet the benefits of partnership have all but disappeared.

When Local Activism Challenges Higher Authority

5

Localities as Political Actors

All governments within the intergovernmental system are political actors. They act politically—in both diplomatic and undiplomatic ways—in order to promote and defend their interests against the actions and inactions of other governments that possess equal or greater power. Much of the political space within which these transactions occur is created by the ambiguity of functional assignments and responsibilities within the federal system. The division of power and responsibilities among governments in the American federal system has long interested scholars from a variety of disciplines including political science, law, public administration, economics, and public policy. Ann Bowman and Richard Kearney remind us that the balance of power debate dates to the earliest days of the nation. Despite more than two centuries of consideration, however, there is no consensus regarding which level of government should do what “aside from, perhaps ... that the lowest capable level of government should be responsible for any given function or service.23 The absence of agreed-upon functional assignments among the nation’s more than 89,000 governments fosters competition that is often aggressive and tense. Lacking clear assignments of authority and responsibilities, “governments regularly bump into each other. ‘With each bump…an opportunity is provided to challenge or affirm existing understandings regarding who should do what, on whose budget.’”24 This bumping about is frequently viewed in zero-sum terms: power and other resources are often won, and responsibilities shed, at the expense of another governmental unit. Localities are the most vulnerable in these interactions. Higher-level governments are guilty of shifting costly and politically charged responsibilities to the local level while reserving more desirable functions and powers to themselves. Conversely, localities sometimes attempt to shift undesirable responsibilities to higher governments by, for example, proclaiming their own lack of authority for the unwanted task. While misbehavior influences future relationships and transactions by creating tension among governments, this eventuality is not sufficient to prevent the continual shifting of blame, responsibilities, and costs. Nevertheless, most intergovernmental relations have “more of the flavor of interest group politics and low visibility dealings than…of a boisterous family squabble or a grand battle among governments.”25 Representing individual, self-interested units of government, national, state, and local leaders typically attempt to achieve their goals

6

Renegade Cities, Public Policy, and the Dilemmas of Federalism

diplomatically: They “bargain with each other as well as lobby, confront, ignore, threaten, circumvent, and sue one another”—political behaviors that are more commonly associated with politically active private individuals and groups.26 Diplomacy is much less costly than conflict—both politically and economically—thus, governmental leaders may fight, but they carefully pick their battles. When diplomacy fails, state and national governments can—and frequently do—rely on mandates, preemptions, economic disincentives, threats, or even alterations to local authority to accomplish their goals. Lacking these tools, localities must continue their “hat in hand” approach, lobbying in hope of finding a receptive audience. When that fails, local governments may stall, dodge, or sue other governments. These strategies, while not obviously cooperative, are nonetheless diplomatic because they fall within the acceptable, expected bounds of intergovernmental negotiation. Diplomatic political behaviors presume that stakeholders are still at the table, willing to at least consider accommodation—albeit perhaps with the application of legal pressure. The use of local activism, on the other hand, suggests that local leaders have little or no confidence that accommodation can be achieved through diplomatic means. Without the power to force other governments to consider local interests, local leaders may turn to pressure or protest strategies. Although branded “arrogant,” “lawless,” “silly,” and even “charlatans”27 by their critics, local officials often defend their activism as civil disobedience—acts of conscience made necessary by the persistent policy failures of state and federal legislatures.28 Others claim that they are forced to act due to degrading local conditions caused by state or federal actions or inaction, or a perceived “distant”29 condition that is incompatible with local values. The many political, economic, and social developments that have likely played a part include policy conservatism and centralization at the national level; a changed, more aggressive leadership style at the local level; increased interest group activity in localities, and all levels of government; economic recession(s); heightened party polarization and legislative gridlock; and rising popular discontent with higher, especially national, government. Local governments are not alone in their activism. A growing body of literature has documented the recent growth of state activism against federal policy. Dale Krane writes that there has been a centralizing “trend toward coercive federalism…since the 1980s.” The states, particularly during the Bush administration, responded to federal interference with: “(i) resistance to many of the Bush policy positions and (ii) heightened independent policy activity.”30 Some states have

When Local Activism Challenges Higher Authority

7

simply refused to cooperate with certain aspects of federal policy. For example, the “Food and Drug Administration’s (FDA) ban on the importation of prescription drugs was defied by several states.”31 Others passed resolutions opposing, for instance, the REAL ID Act and the Patriot Act.32 We see similar behavior today as states respond to the Patient Protection and Affordable Care Act. State frustration with federal inaction has contributed to this aggression. The ongoing inability of federal legislators to work together burdens the states by preventing policy remedies in matters reserved to federal control: “the difficulty of enacting federal legislation, the frequent existence of partisan polarization at the federal level, and the multiplicity of veto points that can impede policy action”33 prevents timely and sufficient federal policy responses, leaving the states with little choice but to act, despite their lack of authority to do so. Localities have also suffered from legislative gridlock and higher government inaction.34 Further, the absence of gridlock does not guarantee issue resolution; policies adopted by higher governments may be mismatched to local conditions or desires, failing to satisfactorily resolve, or even reflect, local issues.35 Some localities have confronted state and federal inertia by becoming innovative policy laboratories,36 taking it upon themselves to, for example, enforce living wages, mandate local healthcare, require same-sex benefits for city employees, and pass “labor-friendly ordinances.”37 According to legal scholar Richard Schragger, these and other progressive policy innovations are a “function of a growing dissatisfaction with national responses to… problems and a renewed energy and aggressiveness at the local level.”38 Local activism is a symbolic expression of disapproval, a “performance”39 designed to “expand the scope of conflict”40 and force open the public debate. With sufficient media attention and public support, local activism has the capacity to compel state and/or national leaders to defend, and potentially reconsider, their unfavorable policies or behaviors. The history of intergovernmental competition has only recently begun to regularly include local activism, thus, in this book we will explore the evolving relationship between localities and higher governments and the conditions that may have prompted this change. The End of the Intergovernmental Partnership

Central to this book are recent changes to the intergovernmental arrangement that has characterized American federalism from the 1930s until recently. In the 1930s, American federalism was permanently altered by the inclusion of localities as “third partners”41 in the nation’s

8

Renegade Cities, Public Policy, and the Dilemmas of Federalism

“complicated business of governing.”42 The new intergovernmental arrangement emphasized partnership, interdependence, and pragmatism—with cooperation rendering “each partner more effective, so that sharing power was not a zero-sum game.”43 While the language of partnership has survived, few local leaders would agree that it is the reality today. Over the past three decades, the intergovernmental arrangement that was forged during the Great Depression has unraveled. To be sure, real partnership has not been the intergovernmental reality since the 1950s, but local governments of all sizes were, until 1980, recipients of tremendous federal aid. In turn, the policies and programs that supported aid to cities created linkages between national and local leaders— potential pathways for communication and negotiation. These pathways eroded throughout the 1970s as popular support for urban programs declined. As national leaders shifted their attention to the new suburban majority, aid to cities became increasingly difficult to defend. Beginning in the early 1980s, localities were, in effect, told to “fend for yourself,” even while terrific responsibilities, and often extraordinary costs, of state and national programs were devolved to them.44 To put it mildly, the transition from partner to policy implementer was painful. Pushback was inevitable. While the historical intergovernmental arrangement has changed, the legal status of localities has not. As subordinate units, localities assume that resistance exposes them to one or more of several negative consequences. They may lose local autonomy or power. They may damage their relations with state-level leaders, damage that can include a reduced capacity to negotiate with state leaders, as well as lost access to state revenues, or even to their own revenues. Activist localities may bear the cost of litigation when localities are found to have acted beyond their authority. For example, the American Civil Liberties Union reports that immigrant-related local policies passed since 1980 have cost local taxpayers millions in court-assigned legal fees.45 In addition, some cities have lost population and businesses and associated revenue, most frequently due to the perception of wasted taxpayer dollars or the demonstration of governmental intolerance, such as when local activism targets specific groups of people.46 Finally, activist elected officials invite personal risk, such as reputational damage and even electoral defeat. Mitigating these risks is higher government dependence upon local program implementation, recent gains in local self-sufficiency, and the rising political and popular status of cities. Regarding dependence, heavy state and federal intertwining with localities is responsible for a

When Local Activism Challenges Higher Authority

9

great part of the roles and responsibilities that localities have accumulated in recent years. Since 1980, “transfers of program responsibilities from state and federal government, as well as the imposition of state and federal mandates, [have] increase[d] the roles and responsibilities of municipal governments.” 47 Today, “much of what city governments do…is influenced by public officials and institutions at higher levels of government. Also, the opportunities for the exercise of that influence have increased, both in number and type.”48 With each new function that local governments perform on behalf of state and national governments, the system becomes increasingly dependent upon local expertise and cooperation for its functional well-being. As a result, localities enjoy a measure of discretion and leverage despite state or federal authority. Jessica Bulman-Pozen and Heather K. Gerken have described this phenomenon in association with state-level defiance, calling it “the power of the servant.”49 Importantly, while higher governments are increasingly dependent upon localities, local governments are less dependent upon state and federal resources than they once were. In 1980, for example, federal aid accounted for “26.5 percent of spending by states and localities, in 1987 it was 19.1 percent…[a decline of] 34 percent in real terms.”50 Federal aid to urban places declined by 47 percent during the same period.51 In the mid-1980s, facing their own budgetary shortfalls and the negative effects of federal mandates and conditions of aid, state governments began to push administrative—and often financial—responsibility for numerous federal and state programs down to localities. “This ‘secondorder’ devolution, according to the National League of Cities, has meant that ‘transfers of program responsibilities from state and federal government, as well as the imposition of state and federal mandates, [has] increase[d] the roles and responsibilities of municipal governments, often without corresponding fiscal capacity or authority.’”52 Left to sink, most local governments have learned to swim, becoming fiscally self-reliant, competent managers, and creative advocates for the jurisdictions that they serve. They actively sought private investment, domestically and abroad. They have attempted to get ahead of emerging trends, drawing new technologies and demands into their economic development plans. They have done much more. To be sure, success in these endeavors has been uneven. Nevertheless, some “cities have become economic titans again. Other cities have at least seen their fortunes stabilize.”53

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

Finally, the rising status and visibility of cities, especially central cities, has made resistance to higher authority less risky. Cities are not the less-than-desirable places that they used to be and, as a result, many have enjoyed an urban resurgence. After decades of population loss and decline, many cities, beginning in the late 1970s, began to focus on revitalization and restoration of their infrastructure, built environment, and economic base. This coincided with new economic opportunities brought by the globalizing economy, as well as the nation’s associated shift away from manufacturing to knowledge- and service-based jobs. The new interrelated employment sectors have found revitalized and revitalizing localities eager to accommodate the unique needs of today’s agglomerating industries and the people who work within them. Richard Schragger points to new economic stability, local policy experimentation, the educational level of city residents (compared to other areas), and urban diversity as reasons for urban resurgence—a condition in which cities are no longer losing population even as they have renewed economic clout.54 Today’s localities enjoy higher levels of professionalism, economic vitality, self-sufficiency, and even national and international visibility and prestige than ever before. Entrepreneurial, strong, charismatic mayors, reinforced by a general sense among the population that state and federal leaders are no longer “tuned in” to the people, have created conditions in which cities sense greater autonomy and independence than was once the case. Although formally weak, intergovernmental interdependence, public distrust for higher governments, and improved self-sufficiency permits today’s frustrated localities—whether invited or uninvited—to participate in the “dialog” that is federalism,55 with its exchanges that span the “polite conversations and collaborative discussions that cooperative federalism champions….to restrained disagreement to fighting words.”56 Localities interject all along the continuum, sometimes winning a seat at the table, particularly when state or federal officials believe that there is more to be gained than lost by including them. Local leaders have also found that when their accommodation cannot be negotiated, other means of pressure exist. They may be legally subordinate but they appear fully aware that “autonomy is not a necessary precondition for effective state contestation.”57 The political strategy chosen by a locality in any given instance depends upon a number of factors. In addition to the external forces mentioned above, historical decisions inform current local conditions and choices, as do greater—even global—economic, cultural, and political forces. Local leaders also take into account the level and quality of input they have in shaping the policies that directly affect them, the

When Local Activism Challenges Higher Authority

11

urgency for action, and whether more powerful governments appear to be committed to a relationship of compromise and accommodation—as opposed to resistance—when presented with local requests. Finally, because local leaders are also self-interested political actors, personal ambition is almost certainly a factor when considering political strategy. Personal ambition and local expectations will constrain some to diplomatic, traditional political behaviors, while others may opt for more aggressive, often highly visible, action in hopes of furthering their careers. Open, Exposed Cities

In this book, local units of government are viewed as open systems, vulnerable to external forces that may positively or negatively affect local capacity and authority. Certainly, local capacity and decisions are affected by local conditions and demands, but the actual scope of the city’s political environment extends far beyond its jurisdiction lines into areas where localities have no formal power. Described extensively elsewhere,58 examples of external forces include direct state and national interference, global economic trends, extra-local politics, international trade policies, war, natural disaster, the policies and actions of other localities, and even academic research and technological innovations. Localities are also affected by state and national governments’ responses to shifting conditions and citizen demands; changing conditions frequently precipitate higher action that results in the contraction of local autonomy or authority and/or the expansion of local responsibilities.59 A particularly important external force is the need to compete for finite economic opportunities. Because localities are unable to compel residents and businesses to come and stay—but need both to survive— they are forced into interlocal competition. A city that offers lower taxes or more attractive zoning policies may attract new or existing regional residents and businesses. Nearby localities may attempt to even the field with similar policies, even when reduced tax revenue, for example, further threatens local economic well-being. Others may be forced to raise taxes on their current residents and businesses to continue an acceptable level of services—a move that may ultimately contribute to further local decline. Of course, internal forces also condition local choices and capacity. These include citizens’ expectations and demands as well as what is permissible—and possible—given local culture and political values, historical choices, and the socioeconomic, natural, and built

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

environments of the locality. These internal and external forces interact, forming the arena within which local political strategies are formed, and policies and implementing actions are decided. Localities that are unresponsive to internal and external changes have suffered many fates: population loss, local regime change, federal and state preemptions and mandates, or state assumption of local finances or other traditionally local domains. Less common, although not unheard of, are local dissolutions, voluntary consolidation of struggling localities with better-off jurisdictions, and state-forced annexations. According to David Easton, the key to avoiding all of this is to stay nimble, evolve, continually adapt. All governments face change and capacity challenges, but local survival depends on the ability to manage stress while continuing to maintain citizen support “within some normal range of operation.”60 Local Self-interest

This book views all governments and governmental organizations within the U.S. intergovernmental system as self-interested, individual political actors. Alberta Sbragia argues that most scholars view political activity as “the representation of interests defined in societal terms. Elective officials, neighborhood organizations, and real estate owners, for example, pursue their interests in the political arena. In this view, government is the object of pressure from groups rather than an actor in its own right.”61 Yet, governments possess their own unique interests and concerns; because they do, they attempt to influence other governments to protect themselves and to achieve their goals. Local governments are not exceptional in this regard. They are exceptional, however, in their subordination. However, the intergovernmental arena is not a purely legal realm; it is also a political realm in which localitiesas-political-actors often—although certainly not always or predictably— get what they want.62 What interests do localities seek to promote? This book sees the local economic well-being as the primary concern. David Berman writes: “For local governments, [local] interests [include] survival as an independent entity, securing and maintaining authority and economic resources, and securing a degree of autonomy in operation. I see officials as being more focused on financial well-being than on simple autonomy.”63 Paul Peterson argues that the local interest is to “maintain or enhance the economic position, social prestige, or political power of the city, taken as a whole.”64 To improve any one of these interests is to “enhance the city’s standing in the other two,” nonetheless, economic

When Local Activism Challenges Higher Authority

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standing is the central preoccupation of most cities. 65 The point is, whatever else they may be, cities large and small are economic actors, continually in competition for “as much capital and as high a quality labor force as possible.”66 The significance of local dependence upon private capital is key to understanding much of local behavior. As one legal scholar put it, “cities in the real world are a product of—and exist only because of—the presence of economy-producing firms and the residents who choose to live there.”67 Having recently found intergovernmental revenue unreliable, local governments must cultivate their own-source revenues for their economic well-being, a condition that raises the stakes in the endless interlocal competition for “high value” residents, and for the “private investment, employment, and production, and capital and labor [that can] move easily across city lines.”68 In this competitive environment, winning localities quickly and skillfully adapt to the preferences of their existing residents and businesses as well as to those they desire to attract. To ensure the survival of the political system, “It is the existence of a capacity to respond…that is of paramount importance.”69 Unfortunately, it is not enough for local leaders to want to be responsive; they must also be able to respond. The local capacity needed to respond—sufficient authority, access to resources, and operational autonomy—is often vulnerable to external forces. Specifically, there are four primary sets of policy tools through which [higher-government] external influence is brought to bear on city governments: (1) authority/discretion regarding issues of local governmental organization and structure; (2) authority/discretion regarding the powers of local governments to tax, spend, and borrow; (3) federal and state mandates; and (4) federal and state court rulings and judicial interventions in the operation of local agencies.70

Localities are affected by the extent to which higher governments make use of these policy tools. Importantly, they have been used frequently over the past century, and rather harshly since 1980. The resulting loss of agility, combined with the growing complexity of local conditions and demands, has made aggressive political strategy increasingly important to promoting and defending local interests. To summarize, this book argues that economic well-being is the primary interest of localities and that the attraction and retention of residents and businesses is critical to local survival. To attract and retain businesses and residents, local governments must produce acceptable

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

policy outputs in response to internal and external demands. External forces, including state and federal actions and inaction, can enable or limit local responsiveness. Where demands/needs converge with capacity/authority is the political space wherein local political strategies are decided. When capacity and authority are sufficient to generate an acceptable and appropriate response, policy outputs and implementing actions are negotiated locally, as expected. However, when local capacity and/or authority is insufficient to generate an acceptable response, local governments—as self-interested actors—may resort to political strategies—diplomatic or undiplomatic—intended to influence other governments in order to close the demand/resource gap. A Note about Terminology

For many, the word “urban” conjures competing images of downtown skylines, aging and crime-ridden central cities, building-dense cores, and, perhaps, great cultural venues. While big cities preoccupy, this perception neglects the reality of our larger, economically and socially interdependent urban regions, and the variety of local governments, also classified as “urban,” that exist within them. Rather than focus solely on the central city, most of today’s urban scholars study the city—and even the county—within a regional context; with this wider perspective the central city becomes a piece in the patchwork of local governments that surround it. Nationwide, this patchwork involves 361 metropolitan and 573 micropolitan areas. These metropolitan and micropolitan areas are comprised of a complex assortment of counties, municipalities, towns, townships, and villages, and a variety of single-purpose special districts. Nearly 2,000 of the nation’s 3,141 counties lie within these metropolitan and micropolitan areas, and more than 90 percent of the U.S. population lives in them.71 Tucked into these metropolitan counties are the majority of the nation’s 36,011 municipalities, towns, villages, and townships; 13,051 school districts; and 37,381 non-school related special districts.72 Similar to the faulty perception of “urban as central city,” the word “city” brings images of large, loud, noisy, and crowded areas—yet most U.S. cities are small. In 2007, of the nearly 19,500 incorporated municipalities in the U.S., only 103 had a population of 200,000 or greater, 263 had a population greater than 100,000, and only 690 had a population of 50,000 or more.73 The remaining 18,444 units had a population of less than 50,000. Many of these cities and towns are located in the suburbs that satellite larger core cities. Although small in comparison to New York, Chicago, or Los Angeles, many are highly

When Local Activism Challenges Higher Authority

15

participant in the social and economic fabric of their larger metropolitan areas. The terms that are used most often in this book are “localities” and “local governments.” They are used interchangeably to refer to an urbanized area that is served by a general purpose government. Thus, these terms may refer to, for example, my small hometown or the city of Chicago, a tourist city in the desert or a suburban enclave at the edge of New York’s metropolitan area. Conversely, these terms do not signify unincorporated county property, single-purpose governments, or entire regions. If greater distinction is necessary—such as “county,” “central city,” or “core city”—I provide it. In addition, this study includes cases of activism undertaken by county governments. Sixty-eight counties and two consolidated city-counties have been involved. They are included within the scope of the term “locality” unless otherwise noted. Plan for the Book

We will approach local activism as a product of the evolving intergovernmental system, external economic, political, and social conditions, and changing needs, capacity, and self-perception of local governments. Our historical approach is intended to demonstrate the maturation of cities as they have become less autonomous but increasingly important to, and intertwined with, higher governments. Their increasingly limited authority and autonomy has made adaptation difficult and, thus, aggressive behaviors may have become more attractive. This book is organized into two parts. The first part is devoted to the evolution and adaptation of local governments from their founding to today. These chapters, Two through Four, are intended to demonstrate the gradual loss of local autonomy over time and the ways in which localities have, nonetheless, responded to local needs and demands. The second part explores local activism within the context of the literature on protest and policy diffusion before turning to the three most visible areas of local activism for examination and discussion. In Chapter Two, we explore how local governments gradually lost autonomy and power from their founding to 1930. From their founding, cities have been challenged, stressed—constantly forced to adapt. The historian Jon C. Teaford explains that the same forces that transformed the nation’s “social, economic, and intellectual environment” also transformed the “habits, customs and beliefs” of the citizenry. Localities had to adapt to these “fresh realities” in order to survive.74 The artisan and local market of the colonial era gave way to urbanization, machine-

16

Renegade Cities, Public Policy, and the Dilemmas of Federalism

production, and the new industrial economy. With these changes, localities lost their isolated, protected status, finding themselves under ever-increasing state scrutiny and control. How localities managed to bridge the gaps between their needs and resources differed over time according to their capacity, autonomy, leadership, and the urgency for action. Each historical shift is a layer that informs localities’ changing self-perception and intergovernmental status. Chapter Three continues our discussion of local adaptation, focusing on the years 1930 to 1980. During this period, the American system of federalism underwent revolutionary change as localities were brought into partnership with the federal government. From 1932 to 1980, the federal government grew increasingly involved in urban policy and, as a result, localities became dependent upon federal aid. Their dependence provided channels of communication and influence upon higher governments that, for a time, exceeded their legal status. Yet, lacking constitutional protections, dependence upon intergovernmental revenue made localities increasingly vulnerable. The political shifts of the 1970s would catch up to localities in the 1980s as popular will for federal urban programs waned and localities, with the end of partnership, were left to “fend for themselves.” As a result, local needs grew in urgency. To meet these needs a new type of leader emerged to pilot cities through deindustrialization and federal disinvestment of urban programs. Chapter Four explores today’s urban environment. Today’s localities benefit from the efforts of new leadership that emerged in the late 1970s-1990s. Many localities, because of these leaders’ efforts, were prepared for the nation’s shift to a knowledge-based economy, intensified globalization, and the bevy of new demands and responsibilities that followed. Local leaders began to focus their attention on aggressive economic development, competing for the information- and service-related jobs that are vital to the postindustrial, global marketplace. Successful efforts have brought new populations to urban areas, increasingly from other nation-states, and renewed political clout and international visibility to many larger cities. Many of today’s localities enjoy these sources of informal power and consequent confidence. Their changed, perhaps elevated, self-perception has manifest in local policy experimentation, increased self-sufficiency, and a new aggressiveness at the local level. With Chapter Five we transition to the second part of the book, discussing the phenomenon of local activism within the context of the protest literature. A continuum of local activism is offered and factors that may inform a locality’s decision to act in more or less aggressive ways are discussed. The political, economic, and personal risks and

When Local Activism Challenges Higher Authority

17

potential rewards of local activism are reviewed. Finally, the field of local activism is surveyed. An overview of the main policy areas that have been targeted is provided, as well as the geographic information related to these cases of local activism. Three chapters are then devoted to individual policy areas that have been targeted for local activism. Chapter Six is concerned with the rights of lesbian, gay, bisexual, and transgendered individuals, with a particular focus on same-sex marriage. Chapter Seven focuses on undocumented immigrants and the local activist policies that both protect and exclude them. Chapter Eight is concerned with local foreign policy activism in the 1980s as well as the recent movement protesting the war in Iraq. In each of these chapters, brief cases are offered, followed by a discussion of points of interest relative to each issue area that emerged in the course of my research. Chapter Nine concludes the book.

Notes 1

Ananda, “Home rule takes a beating as Maine defeats food freedom bills.” DeAmbrose, “Local Food Ordinance Aims to Protect Direct-to-Consumer Sales.” 3 Ordinance, “Local Food and Community Self-Governance Ordinance of 2011.” 4 Staff writer, “Interactive Food Sovereignty Map.” 5 Nestmann, “A PATRIOT Act for Food?” 6 Staff writer, “Food Safety Act.” 7 Curtis, “Keeping the Church Potluck Legal and Free.” 8 Schragger, “Can Strong Mayors?” p. 2556. 9 Ibid. 10 Schattschneider, The Semi-Sovereign People. 11 Dolan, “Cities with peace resolutions.” 12 Shuman, Dateline main street,” pp. 158-177; Hobbs. City hall goes abroad. 13 Bill of Rights Defense Committee, “Resolutions passed and efforts underway.” 14 Dolan, “ Foreign policy goes local.” 15 O’Neil, “ Hazleton and beyond.” 16 Ohio Jobs and Justice Political Action Committee, “Sanctuary cities, USA.” 17 Human Rights Campaign Foundation, “Equality from state to state (series).” 18 City of Clinton v. Cedar Rapids and Missouri Railroad Company, 475. 19 Berman, Local Government and the States, p. 2. 20 Easton, The Analysis of Political Structure, pp. 3-4. 2

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

21 See, for example, Benton, “State-City and State County Fiscal Relations” in Networked Governance. 22 Sbragia, Debt Wish, pp. 5-9. 23 Bowman and Kearney, “Second-Order Devolution,” p. 563. 24 Berman, Local Government and the States, p. 7. 25 Ibid. 26 Sbragia, Debt Wish, p. 8. 27 Law, “Multnomah officials will issue licenses”; Lithwick, “Bad City”; Richtel, “San Francisco gun vote”; Ford, “Civil Disobedience.” 28 Riverstone-Newell, Personal communication with Mayor Michael Nutter. 29 Rucht, “Distant Issue Movements in Germany” in Globalizations and Social Movements. 30 Krane, “The Middle Tier in American Federalism,” p. 469. 31 Ibid., pp. 453-477. 32 Ibid.; see also the Bill of Rights Defense Committee’ “Resolutions Passed and Efforts Underway.” 33 Ferraiolo, “State policy innovation and the federalism implications of direct democracy,” p. 488. See also: Krane, “The Middle Tier in American Federalism,” pp. 453-477; Dinan, and Krane, “The State of American Federalism, 2005,” pp. 327-374; Karch, “National Intervention and the Diffusion of Policy Innovations,” pp. 403-426. 34 Schragger, “The Progressive City,” p. 39. 35 Fiorina, Disconnect. 36 Teske and Schneider, “The Bureaucratic Entrepreneur”; Osborne and Gaebler, Reinventing Government. 37 Schragger, “The Progressive City,” p. 39. 38 Ibid. 39 Meyer, The Politics of Protest, p. 12 40 Schattschneider, The Semi-Sovereign People, p. 3. 41 Hodos, “Against Exceptionalism” in Dilworth, ed, The City in American Political Development, p. 55. 42 Betters, Williams, and Reeder, Recent Federal-City Relations, p. 136. 43 Hodos, “Against Exceptionalism” in Dilworth, ed, The City in American Political Development, pp. 55-56. 44 Pagano and Hoene, “Fend-for Yourself Federalism” and Bowman and Kearney, “Second-Order Devolution.” 45 See, for example: ACLU: Immigrants’ Rights Project, “Anti-Immigrant Ordinances Have Real Economic and Political Costs for Cities that Enact Them.” 46 Ibid. 47 National League of Cities. “Cities and the future of public finance.” 48 Rich, “The Intergovernmental Environment” in John P. Pelissero, Ed., Cities, Politics, and Policy, p. 62. 49 Bulman-Pozen and Gerken, “Uncooperative Federalism,” pp. 1256-1310. 50 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues,” p. 515. 51 Ibid. 52 Ibid. 53 Schragger, “The Progressive City,” p. 44. 54 Ibid., p. 39.

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55

19

Shapiro, Federalism: A Dialogue, p. 108. Bulman-Pozen and Gerken, “Uncooperative Federalism,” p. 1271. 57 Ibid., p. 1260. 58 Pelissero, ed., Cities, Politics, and Policy. 59 Berman, Local Government and the States, pp. 19-35. 60 Easton, A Systems Analysis, p. 24. 61 Sbragia, Debt Wish, p. 7. 62 Briffault, “Our Localism: Part I,” p. 112. 63 Berman, Local Government and the States, p. 13. 64 Peterson, City Limits, p. 20. 65 Ibid., p. 22. 66 Ibid., p. 29. 67 Schragger, “Mobile Capital,” p. 496. 68 Schragger, “Can Strong Mayors,” p. 2559. 69 Easton, A Systems Analysis, p. 24. 70 Rich, “The Intergovernmental Environment” in Pelissero, ed., Cities, Politics, and Policy, p. 36. 71 U.S. Census Bureau, “Population Change in Central and Outlying Counties of Metropolitan Statistical Areas: 2000-2007.” 72 U.S. Census Bureau, “Census of Governments, Vol. 1, No. 1. 2007.” 73 U.S. Census Bureau, “IP: Resident Population Estimates of Incorporated Places Only: April 1, 2000 to July 1, 2008.” 74 Teaford, The Municipal Revolution in America, p. vi. 56

2 The Evolving Power of Cities

This chapter seeks to address a series of interconnected questions. What in the intergovernmental power arrangement has changed such that localities resort to activism, a strategy typically reserved to the politically weak? The recent emergence of local activism suggests that localities have lost power within the intergovernmental arena. Were they once more influential, rendering activism less necessary? If so—if they are less powerful than they once were—does this help to explain their recent aggression? When localities engage in activism, they implicitly reject their subordination, often “lay[ing] claim to a role in interpreting…” state or federal constitutions, an action that stands in sharp contrast to the “relatively weak constitutional status” of local governments.1 What gives these localities the gumption to challenge their legal status? Have they always been this aggressive, but perhaps in different ways? In order to answer these questions, this chapter examines how the power of municipalities has changed over time. With David Berman, power, for the purpose of the analysis to follow, is defined as “the ability of one type of government to defend or promote its interests in the intergovernmental system.”2 As will be seen, local power has evolved from the Colonial era to today. As “historical composites,”3 one phase in the power relationships among governmental units has built upon the previous era’s to create conditions in which local identity and intergovernmental power is woven through layers of history. Intergovernmental power is more than a function of legal status. Rather, power is a function of politics, and “formal powers…[are] just one variable in the political system.” Neither legal power nor autonomy need be present for intergovernmental power to exist.4

21

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

From Settlements to Cities

The seeds of local self-determination were planted in Colonial America and have endured through the present day. Much of the special regard that we have for the governments closest to us can be traced to colonial cities, places wherein we were able to operate quite freely from central government control, places where people determined and pursued the lives they desired with little state interference. This localism and regard for self-determination is organic to U.S. society, the natural byproduct of the assemblage of people.5 Localities are reflections of American identities. They are homes to families, places to work, communities in which to raise children. For all of these reasons and more, Americans resist encroachment upon local decisions and functions by other governments. As the American colonies were being settled, English authorities worried that if America’s population were too dispersed, it would make both economic development and governance of the colonies difficult. Accordingly, British colonial authorities encouraged settlers to “plant towns.”6 Despite this encouragement, the grand-scale urbanization that characterizes today’s America was not inevitable. “During the eighteenth century and the first two decades of the nineteenth, urbanization barely kept pace with the diffusion of hundreds of thousands of settlers into the back country.”7 In 1790, the year of the first federal census, there were twenty-four places with a population of 2,500 or greater (the minimum to be considered urban). As seen in Table 2.1, these places were home to only five percent of the nation’s population. Urban growth proceeded hesitantly over the next several decades; the 1850 census recorded about 15 percent of Americans lived in urban places. Table 2.1: United States Urban and Rural Population: 1790–1910 for Selected Census Years 1790

1820

1850

3,929,214

9,638,453

23,191,876

Percent Urban

5.1

7.2

15.4

28.2

45.6

Percent Rural

94.9

92.8

84.6

71.8

54.4

Total Population

Source: U.S. Census Bureau

1880

1910

50,189,209 92,228,496

The Evolving Power of Cities

23

Colonial “pre-modern” cities were chartered by colonial governors. Most towns that formed before America’s independence began as closely-knit communities populated by people who understood that they were in service to the crown. These comminities were generally entrepreneurial ventures: colonists were to extract resources such as lumber, indigo, rice, and fur from their regions and export the raw materials to Europe for processing, manufacture, and trade. The placement of these cities along the East Coast served as both evidence and reminder that they existed to enrich England. The cities of Boston, New Amsterdam (New York), Newport, Philadelphia, and Charles Town (Charleston) were purposefully placed upon the coastal waters to serve as ports, as were the several colonial cities that followed.8 The incorporation of these “factories of England” benefitted both settler and governor; settlers were provided certain privileges and a healthy measure of self-determination upon incorporation, and governmental authorities found that their efforts to tax and control trade were made easier by having concentrated populations. Importantly, the American colonies inherited local self-governance from English law. This concept offered special status for the colonies, complete with the right to representation in Parliament, as well as protection against the unwelcome interference of the monarchy and undesirable individuals.9 Until the mid-1700s, these charters were considered inviolable contracts, not to be amended without the consent of the parties involved, namely, the governor of the colony and municipal leaders.10 Thus, localities were largely self-governing during the colonial period. This status went without question, so much so that as the nation approached independence “the custom and practice of local self-governance was strong and pervasive.”11 Participation in the political life of the city was generally reserved to an elite few. Voting and holding office were privileges conferred to the merchant class or the landed.12 Leaders of colonial cities were typically elected by select members of the community, and turnover of public offices was infrequent—a norm that presented an additional impediment to democratic representation. Reinforcing their long tenure was the high value that was placed upon “concord, consensus, and cooperation”13 within the community, a sensibility that extended to elections. In other words, contested elections were seen as disruptive, distasteful events and participants to disruption were viewed as inherently suspect. Thus, once in power, local leaders typically retained their positions for as long as they desired, provided they reasonably performed their duties; this practice would continue until the American Revolution.14

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

Toward Municipal Modernization

Movement towards municipal modernization emerged in the early eighteenth century. However, with modernization, local autonomy began to erode. Modernization required removing local control from the hands of the elite for at least two significant reasons. First, cities became demographically and economically differentiated. The old established elite could not retain its power in the face of a new economic and political order. Second, individual liberty was introduced and began to take root in popular thought.15 People became substantially less deferential to elites. Thus, as cities became increasingly important to state and national economies in the 1800s, citizens began to call upon the states to enforce democratic norms in local service provision and, eventually, the political life of the city. The elite order gave way to the era of modernization. Demographic and economic differentiation can be traced to at least two factors: 1) the arrival of European immigrants who quickly and fundamentally altered the texture of cities; and 2) the growth of local production that rendered immigrant labor desirable and necessary to those within chartered cities. This occurred rapidly; while cities were still small compared to today’s standards, the population of New York and Philadelphia, for example, increased “threefold” in the first half of the eighteenth century.16 Prior to the mid-1700s, the recognition of vocational status was a prerequisite to employment within a municipality. However, as cities took their first steps toward industrialization, the owners of growing industries became desperate for labor. The need for new labor led factory owners to call for the relaxation of vocational regulations. In time, new immigrants found that the jobs once reserved to freemen were now available to ordinary citizens. Cities grew in size and diversity as a consequence.17 Admitting non-freemen to the workforce was important for urbanization and industrialization. The exclusionary practices of the early municipal corporation had been defensive measures intended to secure the economic survival of the city. By preventing outside competition, local leaders believed that they could “limit the number of sellers, transporters, and manufacturers and thereby guarantee each a profit.”18 However, “by 1775 economic scarcity no longer dominated urban thinking, whereas the prospect of economic growth did. Consequently corporate barriers to growth, mobility, and enterprise gradually collapsed.”19 As trade and vocational barriers crumbled, cities began to draw rural and immigrant laborers, and the urban population

The Evolving Power of Cities

25

rapidly diversified. Class, ethnic, and other identities increasingly came to shape the political contexts of various communities. A second factor that undermined elite control in colonial cities was the emergence of egalitarian economic and political ideas in mainstream thought.20 These ideas encouraged the lower classes to demand classbased changes and to react, rather than acquiesce, when those changes were not satisfactory or forthcoming. In the decades leading to the American Revolution, Adam Smith’s and John Locke’s liberal notions of economic and political freedom worked their way into the popular mindset and citizens began to challenge authority and the social conditions that they had previously tolerated.21 Early on in the century, these challenges were short-lived. As Greg Nobles put it, in the decades leading up to the American Revolution “the ‘people out of doors’ proved to be rather tame.”22 While the occasional outburst did disturb the relative peace of the colonies, the lower and middling classes usually accepted the city’s elite leadership, “not because they believed others had a right to rule them,…nor because they thought themselves inferior to those who stood over them, but rather because their social situation demanded that they display deference and accept powerlessness.”23

The passive gradually became more assertive after the mid-eighteenth century as the limitations of their station began to grate. Increasing demands for services quickly overwhelmed local capacity, frustrating leaders who had previously enjoyed (and remembered having) few disruptions to their governance. While possessing the authority to provide services deemed “good, useful, or necessary for the good rule and government of the body corporate,” local leaders were “limited by the fact that the financial resources of the corporations were very small.”24 Until around the 1760s, municipal revenue was most often collected via tolls, market stall rents, and licenses to trade or produce goods. More stable revenue sources, such as property or individual taxes, were rarely exploited.25 Thus, colonial cities were often made to resort to “loans and to municipal lotteries” to pay for local needs, none of which included, at least early on, essential services such as waterworks (the first to provide this service was Albany in 1774), social services, public schools, paving or grading of roads, sanitation, and so forth.26 It wasn’t until the mid-1770s that the capacity to provide local services grew as governors authorized localities to levy property and poll taxes for the provision of municipal services.

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Renegade Cities, Public Policy, and the Dilemmas of Federalism

Expanded revenues subsequently generated a growth in public services, although not uniformly throughout the colonial cities.27 Popular demand for modern governance introduced new elements and conditions into the colonial city, changes that gradually eroded local autonomy. According to Alan DiGaetano, modernization required the emergence of “governing institutions… to deliver community services that had previously been the responsibility of quasi-public or private organizations, such as voluntary or economic organizations.”28 The resulting bureaucracy expanded as a system differentiated from other institutions in society, and these “local governing institutions became grounded in a democratic form of legitimacy, in which the election of local officials by a broad electorate became the primary means of popular control.”29 From Protected Isolation to Legal Subordination

The years during and following the American Revolutionary War were a period of great change for the nation’s political institutions: “For as Americans established their new nation, they also set about to reorder the forms and procedures of government, carefully adapting past institutions to the political principles for which they were fighting.”30 The evolution of municipal governance—from exclusivity and elite control to reformed, semi-inclusive governments—required modifications to the traditional scope and strength of local autonomy. Prior to the Revolution, the municipal charter was a sacred, permanent device that served to protect the locality against state interference. During and after the Revolution, reformers criticized charter sanctity, claiming that corporate privilege allowed for excessive municipal control over citizens, a condition not reconcilable with individual freedom. The division of national-state power under the Constitution— federalism—established an arrangement wherein “each of the two units…governs within its respective sphere of authority.”31 This division of power is important to understanding the legal subordination of cities and how they have lost autonomy over time. Under the Constitution, local governments are confined to state authority, beyond national control. By reserving local units to state authority, and by failing to define a separate sphere of authority for localities in the Constitution, localities became subject to their states, an event that constituted a “...reversal of the teachings of colonial history.”32 However, although the states understood that they possessed the authority to determine the scope of local “legal powers, operating procedures, functions, revenue

The Evolving Power of Cities

27

streams and resources,”33 after the initial charter reforms, they largely refrained from doing so until the mid-1800s. Thus, the significance of this reversal would not become clear for four decades. Until then, custom and geographic isolation preserved the distant, state-local relationship, allowing the “internal affairs” of municipalities to continue “in a very large degree free from [state] control.”34 Initial charter reforms in the years following the Revolution sought to bring local structures and governance into alignment with the new nation’s professed values. Predictably, local leaders resisted this threat to their autonomy—just as they do today—and many refused to acquiesce. Reformers responded by demanding that the states impose structural and other democratic reforms upon local leadership. Of particular concern was the “concentration of legislative, executive, and judicial powers in a single body of municipal officers… (T)he great bulk of authority rested in the hands of one group, a group many Americans viewed with fear and suspicion.”35 Hesitantly, state legislators relented to calls for imposed reform, agreeing that the new political climate was incompatible with existing municipal structures and practices. Jon Teaford points to New York City and Philadelphia as important cases, not because they were the first to undergo state imposed reforms, but because they, as larger cities, “commanded the greatest attention among Americans, and consequently they would set the style for urban law.”36 New York and Pennsylvania’s legislatures had to decide whether or not they had the power to alter the local charter—a question passionately debated in all state legislatures during this period. While reformers demanded state intervention to secure individual freedom from the privileged local elite, others feared that state interference, once begun, would eventually erode local liberty should legislatures impose their preferences upon localities without their consent.37 (This fear would soon prove well-founded.) Following several years of debate, Pennsylvania imposed reform upon Philadelphia in 1796. New York asserted state supremacy over the local charter in 1804, following a sustained period of legislative disagreement and waffling.38 Over the next few decades, state legislatures busily reissued city charters with the intent to “rationalize and modernize intergovernmental relations,”39 and the courts were called upon to determine the legality of state interference. According to the courts—then and now—localities were no longer places of privilege and local control; rather, with the new Constitution, they became agents of their states. For all cities newly incorporated, charters were granted with provisions for broad political participation, term limits of one to three years (generally) for officials, and the popular election of councilmen.40 In addition, the right to vote

28

Renegade Cities, Public Policy, and the Dilemmas of Federalism

was included as a definite set of qualifications, removing from city officials the discretion to determine the composition of the electorate. Most cities in the new nation (15 of the 24) required some type of property ownership, minimum tax contribution, or period of residency; these qualifications would gradually disappear during the 1800s, “until all white males were eligible.”41 The remaining nine cities allowed “virtually every resident who was not a vagabond or thief” the right to vote.42 These reforms affected few of the nation’s residents at first. With 95 percent of the population living in rural areas in 1790, charter reform and the trials of city life were distant concerns for most Americans. Of the 24 urban areas that existed, only five had a population of 10,000 or greater. Philadelphia was the largest with just over 44,000 people, followed by New York, Boston, Charleston, and Baltimore.43 With a broadened electorate and electable offices, party politics emerged at the municipal level, introducing yet another sharp break from the traditions of local exclusion and consensus. Competitive contests for municipal offices began in the early 1800s,44 and “(d)uring the 1820s and 1830s…partisan conflict was to reach a new peak.”45 For the first time, urban voters had a choice, albeit limited, at the polls as opposition candidates promised much and current political leaders attempted to respond to local desires. Notably, voter choice was restricted, particularly in the first three decades of the century, to the elites or profit-minded entrepreneurs who desired public office. These men sought the vote for economic gain: “City offices were not sought for the purpose of carrying out impressive programs of social or economic improvement.”46 Thus, the democratic movement toward a broadened franchise and competitive elections did not manifest in immediate improvements for the common man. Over the remainder of the nineteenth century, however, democratic reform efforts continued in the nation’s cities: the powers and responsibilities of municipal leaders were defined and redefined, the new relationship between the states and localities was negotiated, and local leaders struggled to deliver the services that their constituents desired and eventually came to expect. Post-Independence Development

In the 1830s, America’s cities began a period of rapid urbanization that continued throughout the first decades of the twentieth century (refer to Table 2.1). New York City, for example, saw its population of 60,515 in 1800 grow to over 800,000 by 1860. Philadelphia’s 1800 population expanded from 41,000 to nearly 600,000 by 1860. Although America’s

The Evolving Power of Cities

29

33 cities hugged the east coast and navigable rivers in 1800, by 1860, cities like Cincinnati, St. Louis, Milwaukee, Memphis, Indianapolis, and dozens of others dotted the interior. On the west coast, San Francisco incorporated in 1850 with an estimated population of 30,000; ten years later, the city’s population had nearly doubled to 56,000. Chicago incorporated in 1837 and reported a population of 4,500 in the 1840 census. By 1860, its population had soared to 112,000, making it the ninth largest city in the nation.47 In just the 100 years from 1800 to 1900, the nation’s urban places increased from 33 to 1,743, and 40 percent of the population lived in them. Much of this urban expansion was caused by the arrival of foreign immigrants and the internal migration from farms to cities as folks sought work. Escaping the conditions of their homeland, thirty-seven million immigrants arrived in the U.S. between 1841 and 1930. During the height of this movement, 1880 to 1920, 20 million European immigrants passed through Ellis Island at the rate of thousands per day. These immigrants filled and expanded the nation’s cities, providing the necessary labor force to support the Industrial Revolution. In return, industrialization made possible the “production of food and other essentials just as more and more people required them…. There was an elegant synergy at work here as the two interdependent forces enriched economies and sustained more people than ever before, and its most dynamic expression was in the rapid growth of cities.”48 Rapid urbanization, however, also led to “the intensification of social problems, such as devastating epidemics, conflagration, growing poverty, and destructive riots that accompanied urban concentration…[and this] required public services”49 (italics in the original). As citizens pressured local leaders for action, modern urban governance quickly blossomed. Even the most fundamental services, by today’s standards, were managed by private organizations before the expanding urban population rendered them inadequate. Social disorder and rivalries between ethnic and class groups led to the creation of professional police forces: “For example, the formation of Boston’s police force followed as a direct result of an interethnic disturbance in 1837, known as the Broad Street riot.”50 In the mid-1800s, modern police forces emerged to replace the untrained, part-time, un-uniformed watchmen of the colonial era. New York’s system was reformed first, in 1844; Philadelphia created its force in 1850; and Boston followed in 1854. Baltimore’s force of 350 was created in 1857.51 Boston’s Broad Street riot, because it involved a Protestant fire brigade, “also led to the replacement by the city of the volunteer fire brigade system by a professional firefighting force.”52

30

Renegade Cities, Public Policy, and the Dilemmas of Federalism

The need for clean water, reliable sewers, and waste removal contributed to municipal growth, particularly after the connection between disease and dirty water became clear. Philadelphia made the first stab at modern waterworks, which involved the construction of a reservoir to be filled by water pumped from the Schuykill River by steam engine. The water system began to supply the city in 1801, a success that was envied and emulated by others such that by the “midcentury such works were a standard feature of America’s largest municipalities.”53 Sewage disposal preoccupied city leaders, as well. Boston took over the city’s sewage in 1823, New York in 1849, and Chicago in 1856.54 As mentioned, the shift to positive municipal governance, from private or voluntary provision of services to public provision, did not occur uncontested. Those who desired the modernization of local services (public provision) were opposed by those who preferred the traditional order—whether for reasons of being afraid of a return to autocratic, monarchial control, or being “concerned about rising cost of local government”55 which, of course, translated as higher taxes. Nevertheless, by the mid-1800s the municipalization of public services became institutionalized—albeit unevenly—as cities assumed responsibility for their increasingly complex social and economic problems. The benefits of these services soon became apparent, helping to cement the popular acceptance of the new local institutions and functions; soon the public domain was expanded to include a full range of services. Indeed, by the late 1800s cities across the nation had sufficient support to expand the public domain beyond problem management and prevention to include cultural and aesthetic amenities, such as art museums, parks, public concerts, and public works of art.56 State Intervention

While not all cities prospered, those that did would eventually became primary sites of American industrialization as entrepreneurs recognized the potential for the local manufacture of finished goods (rather than rely on finished products imported for resale). A number of cities that had once promised to become regional forces—Charleston, Norfolk, Lexington—receded. Others—New York, Chicago, Baltimore—grew larger. The winners, those that became centers of trade and industry, enjoyed what Bernadette Hanlon et al. have called “a benign upward spiral of cumulative causation”57: a process whereby economic growth creats jobs, drawing laborers from near and far; these laborers, in turn, become consumers of local goods providing the economic fuel

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necessary to continue the growth of markets, as well as the demand necessary to stimulate the growth of governmental services.58 Smaller cities struggled to compete for a larger share of the economy. Some managed to transition to economic stability while others declined and sometimes disappeared.59 Importantly, this pattern repeated itself throughout the nineteenth, twentieth, and into the twenty-first centuries, creating winners and losers in the competitive interlocal game of economic development. As wealthy merchants invested in emerging manufacturing sectors, particularly after the Civil War, they created the urban centers that would become the seats of the national corporate economy. This shift— from merchant activity to investment in manufacturing—fostered the expansion of cities and municipal reform by gradually transforming the national “economy from a small-enterprise base” comprised of localized, family-owned businesses, to corporations with “national or regional headquarters in large cities such as New York, Chicago, and Boston.”60 Manufacturing cities and their regions became hubs of business activity, providing the financial, information, and technological resources necessary for economic expansion and the creation of “millions of new and peculiarly urban jobs in fields such as advertising, marketing, financing, accounting, typing, office management, and general office work.”61 Property values increased with economic and population growth, providing to city leaders the revenue necessary to modernize local governing institutions and to assume the growing array of responsibilities that were discussed above. Thus, “by 1850 the whole sphere of municipal activity had extended far beyond the dreams of the city inhabitants of 1800.”62 David Berman explains that local autonomy was a casualty of this urban growth: Intense urbanization broke down their insularity: they became part of a larger whole, the state, and their decisions on streets, education, sanitation, health protection, and a host of other matters became of concern to nonresidents as well as to residents. Because of this, the distinction between a local responsibility and a state responsibility became increasingly blurred.63

While eighteenth century localities were largely left to self-govern, the nineteenth century introduced “a tug of war between cities and higher governments for authority, with cities gradually losing ground.”64 According to Charles Glaab and A. Theodore Brown, “[Local] subordination along with the weak legal position of city charters made

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city government, for a considerable time, a kind of forgotten child in the American polity.”65 Cities, to their credit, had managed their affairs fairly well. After 1830, however, they “lost their status as relatively isolated and self-contained units.”66 Some of their lost autonomy can be attributed to the jealousy and fear of state leaders who saw local leaders profiting from municipal spoils and wanted in on the game. At the same time, urban governments were rapidly taking on new responsibilities— increasing opportunities for patronage and graft—while also increasing their visibility, political clout, and importance to state and national economies. These forces would lead to ever-increasing state intervention into the local arena. States used the rapid growth in poor and immigrant residents in cities to justify their intervention into urban governance. The real and perceived behaviors of these groups reinforced state distrust in local capacity: crime, drinking, disease, and gang activity became the norm in the cities, as did relentless and appalling human and animal filth that accompanied residential overcrowding. The per-acre population density in the lower seven wards of Manhattan, for instance, increased from about 95 in 1830 to 164 in 1850.67 In addition, an 1843 “survey found 7,196 people living underground in New York. Within seven years, as immigration expanded during the decade, the cellar-dwelling population of the city had increased to 29,000.”68 Other cities suffered less overcrowding than New York, but similar experiences were found in places like Boston, Baltimore, and Philadelphia. Reactionary anti-immigration sentiments grew and fueled calls for state interference, as did “anti-Catholic, and anti-alcohol sentiments, particularly on the part of people in rural areas and state legislators from those areas.”69 Calls came for normative, morality-based “fixes,” such as the imposition of prohibition and blue laws, as well as honest elections. Rurally dominated state legislatures knew that election fraud multiplied the influence of immigrant voters in urban areas, insulting democratic principles and potentially threatening their own reelection and policy efforts. Good government groups, which had been at work for some time, grew weary of working on their own to “turn the rascals out.” They began to press state leaders to take responsibility for particular functions, such as the corruption-prone police and fire services. State leaders proved willing to respond; some who sought to increase their own power and wealth realized that with state assumption of local functions, they would gain control over local contracts and leadership. Of the tools used to control localities, “ripper legislation” was perhaps the most damaging to local operations and autonomy. These ripper laws often dismissed locally elected officials and state leaders

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assumed the right to appoint leaders to the vacant positions.70 As the century moved forward, state leaders became, “one might almost say, irresistibly tempted so to make use of its well-recognized powers over the cities subject to its jurisdiction.”71 They justified this by asserting their desire to protect local citizens from corrupt local officials. Another tool states used to reduce the autonomy of their local units was the creation of state established special boards or commissions that were independent from mayoral or council control to assume responsibility for certain local functions. These new authorities moved the administrative function of government out of the hands of the elected council and, in doing so, created patronage opportunities for state legislators (and local political machines) who gradually assumed responsibility for the appointment of board members in most cities. Appointment opportunities, coupled with legislative control over hiring decisions and the awarding of local franchises and contracts, generated the means for great economic and political benefits to urban legislators.72 Thus, from the mid-nineteenth century to its last decades, as growing urban areas struggled to meet the demands for public services and improvements, their requests for help spawned a confusing mass of local and state offices, each created to “fix” a specific problem, and most of which fell beyond local control. City councils, having lost some administrative authority, also faced erosion of their legislative authority as state legislatures became increasingly detailed in charter prescriptions and other acts pertaining to city government. The more choices made by the state, the fewer could be made locally. The fragmentation of local authority resulted in responsibility confusion, corruption, and grossly inefficient governance, conditions that would persist, in degrees, throughout the remainder of the century, ultimately producing new and widespread calls for administrative and political reform. Thus states continued to establish “a wide range of independent, special purpose boards and authorities to carry out expanded municipal functions…; some functions, such as schooling… were given autonomous status…; Other functions were removed from local control entirely, and centralized.”73 Dillon’s Rule

The complex web of state and local offices constructed during the mid1800s meant that the machinery of city government grew too cumbersome to govern. These and other conditions sparked the submission of numerous complaints to state and circuit courts.74 One lasting outcome came in 1868 with Dillon’s Rule. Any legal ambiguity

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regarding the subservience of localities was permanently settled in 1868 with the Iowa Supreme Court case, City of Clinton v. Cedar Rapids and Missouri Railroad Company. Judge John F. Dillon heard the case and issued an opinion that is now widely known as “Dillon’s Rule.” Dillon believed that central authority over localities would curb the mingling of public and private functions, preventing local investment in private ventures that had been allowed under the “public purpose” of local economic development.75 With state legislatures calling the shots, Dillon felt that excessive and irresponsible local spending could be prevented. Writing for the court, Judge Dillon asserted: Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy….We know of no limitation of this right… [Municipal corporations] are, so to phrase it, the mere tenants at the will of the legislature.76

Dillon’s Rule has survived as the legal standard that defines the local-state relationship. “In 1903 and 1923, the U.S. Supreme Court upheld Dillon’s Rule: its decision enshrined Dillon’s Rule and permitted state courts to narrow the general grants of authority to municipalities.”77 As a result, localities possess “only as much freedom and authority to govern their affairs as the state, through its constitution, statutory laws, and judicial interpretation of those laws, chooses to give them.”78 Wielding absolute power over their local “creatures,” the states gradually eroded local power over the remaining decades of the century and into the next. Closing the Capacity Gap: The Urban Machine

To manage local demands and concerns, local officials, then and now, need to be skilled managers, program entrepreneurs, political conductors capable of smoothing the relations and interactions among the various social groups, while also managing the needs and expectations of increasingly divergent economic classes and state leaders. None of these skills were to be found in local officials in the mid-to-late 1800s; again, those most capable were occupied with building their wealth in the booming industrial economy. Urban government, therefore, was incapable of coping with the expansion of cities, the differentiation of the urban population, and the current and future commercial and industrial growth. It is in this space, the gap that grew between local

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needs and capacity, that urban machines emerged to become the coordinating bodies—the brokers—of urban services and development. The rise and dominance of the political machine is covered extensively elsewhere, thus, the topic will be given little space here, but a few points are in order. For nearly three generations the political boss “dominated the urban political scene.” In the words of Glaab and Brown: The appearance of “the boss” as a key figure in the American political system was closely related to the cumbersome machinery of government, physical expansion of the cities, immigration which made them into cultural and ethnic patchwork quilts, and commercial and industrial growth…Inefficient administrative structures encouraged the flow of power into the hands of men who could get things done by cutting corners or even, if necessary, by ignoring the laws…The presence of varying and often mutually hostile linguistic, religious, and racial groups within the urban population complicated the problems of social communication and furnished representative government with a new kind of constituency, one not generally anticipated when the country was founded.79

While underrepresented groups had access, and for the first time, to reliable sources of charity and job placement, their votes were required as payment—sometimes repeatedly in the same election. The boss’s power was in his ability to organize the fragments of the public and social urban environment, a political skill that was absolutely necessary at this time in America’s history. By commanding votes, he could control the outcome of elections (and perpetuate the political machine), and by channeling public goods and jobs to those who needed them (much of which was provided by local legislative delegations that he helped to elect), the boss was able to coordinate the various interests and classes of society. Under this system, the boss furthered the development of city infrastructure and relieved social tensions so that urban progress and the differentiation of population and economy could continue. Under his watch urban streets and regional railways were built and expanded, parks were developed, and public buildings were raised. On the other hand, the contracts and patronage that served as the lifeblood of the political machine were often much costlier to taxpayers than necessary to accomplish any legitimate public purpose; however, the boss did what others in society could or would not do: he provided “city governments with at least a minimum of regularity without which the governments could not have functioned at all.”80

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The larger point, for our purposes, is that political machines grew out of conditions, both organic and artificial, that characterized the midcentury urban environment. Population and economic growth and diversification created problems whose remedies were well outside of local capacity. The legal constraints placed upon localities required them to seek relief from the states. The states responded in such a way as to further confuse the already-complicated urban environment, rendering the capacity of local governments to organize and cope with their demands and conditions insufficient. From beyond the realm of government came the solution: professional politicians who were able to extract resources from all points—votes, money, jobs, contracts—to distribute in such a way that the fragmented governmental and social structures of the mid-1800s could be temporarily cobbled together to accomplish grand-scale urbanization. James Fitzjames Stephen, an English judge and writer during the era, claimed: “The strongest man in some form or other will always rule.”81 For a good chunk of the nineteenth century, the strongest man was the boss. He was the only one who possessed the skills of organization and coordination. Reform: Reasserting Local Self-Governance

By the 1890s, it had become clear in many parts of the country that state intervention had done little to cure the problems of cities. Academics and citizen reformers began to think in terms of reforming city governments by strengthening the power of city government and, thus, the ability of cities to manage their own affairs.82 Cities had been subject to state interference from the 1830s and had been dominated by political machines for many years when reformers’ efforts began to gain traction. Much of their protest “centered not so much on the question of whether the states could lawfully dominate cities, but rather on the wisdom and fairness of the state actions.”83 The inflated costs of public programs under boss rule, state mandates, state-created boards and commissions, and payments for interest on municipal debt had increased taxes beyond comfort by 1870s, and the benefits of public expenditure were often not obvious to taxpayers. Many believed the cost of government to be “needlessly high”—a truth that would be confirmed in the coming years as the bosses were forced to turn over the reins of government.84 As the costs of machine activity translated into taxes, so too did the interest due on mid-century debts. These debts were assumed for public infrastructure programs and other improvements, creating obligations that caught up to taxpayers in the late century. In 1880, Providence, Rhode Island, paid 40 percent of

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its tax revenues to interest on indebtedness; New Jersey paid 50 percent; Cleveland paid “about one-third”; and in the state of New York “charges to debts on cities…came to more than the whole cost of running the state government.”85 Building upon earlier reform efforts, the new spirit of reform grew throughout the 1890s to include every major city and the various groups within them. Across the nation, legislatures were pressed to provide: 1) local home rule – relief from state interference in local matters; 2) stronger local executive authority to increase accountability; 3) simplification of the municipal structure (particularly the adoption of commission or city manager plans); and 4) some pressed for city elections to be removed from the state and national cycles.86 Motives implicit in the new “search for order”87 was the desire to impose “efficiency, economy, and professionalism,” to control the immigrant vote, to “constrain the abuses of boss rule, legislative interference in local government, and the spoils system…(and to break) the alliance between big business and party officials.”88 As a result, particularly of the limitations put on state intervention into local affairs, localities did much for themselves by themselves during the last decade of the 1800s and into the twentieth century. As Woodrow Wilson commented in 1898: “The large freedom of action and broad scope of function given to local authorities is the distinguishing characteristic of the American system of government.”89 Since the municipal reform movement took root in the late 1800s, the structures and institutions of American cities have been “tinkered endlessly with,” as local powers and responsibilities have been reconsidered, revised, and reassigned.90 Through this tinkering, electoral rules have been modified, governmental structures adapted, special districts created, and, less frequently, jurisdictions have consolidated. The power of urban machines and immigrant groups was curtailed by the abolition of wards. Voter registration and literacy tests were introduced in order to control local electoral abuses. Private and nonpartisan ballots were introduced to allow individuals to vote their conscience without fear of retaliation. And local elections were moved to “off years,” years wherein state and federal elections were not held. Of particular relevance to this work is reformers’ push for home rule in the last decade of the nineteenth century. A number of urban reformers sought to combat the “chaotic, seemingly systemless mode of urban lawmaking”91 by calling for municipal home rule, which would, in theory, allow localities to write and amend their own charters, subject to citizen approval. By removing charter amendment from legislative control, home rule, claimed reformers, would provide the means to curb

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state interference into municipal affairs.92 While the original push for home rule focused on distancing localities from state legislatures, it has since expanded to become “associated with the larger idea of broad grants of local autonomy.”93 Then as well as now, the argument for home rule directly confronts the question of the appropriate balance of power and responsibility between states and localities. In fact, the movement’s goals—“(1) to prevent legislative interference with local government, (2) to enable cities to adopt the kind of government they desire, and (3) to provide cities with sufficient powers to meet the increasing needs for local services”94—were designed to undo many of the limitations that accompanied Dillon’s Rule by allowing localities to control things “purely local.” Home rule localities would be able “act and make policy in all areas…not…designated to be of statewide interest through general law, state constitutional provisions, or initiatives and referenda.”95 After Missouri wrote the nation’s first home rule provision into its 1875 constitution, other states followed.96 By 1925, 14 states allowed for some form of home rule. Today, all but two states, Vermont and Alabama, allow their cities some form of home rule and 37 offer the same to their counties. With stronger mayors and greater support for local authority, state legislators came under pressure in the early 1900s to return to localities many of the functions over which they had previously assumed control. The new state role was to be one of administrative supervision, placing them in the hands of non-political state-level administrative bodies, a deliberate attempt to remove control of localities from legislatures. They also practiced restraint, allowing cities to cope with their major improvements and challenges alone.97 “To deal with such problems, large cities both recruited and developed highly trained administrators who had little need for state assistance and, indeed, little tolerance of supervision by state administrators.”98 The transition to a professionalized local administration was a crucial point in the maturation of localities, setting the stage for the coming surge of intergovernmental responsibility that would fall upon them with the Great Depression. While local administrative skills were still developing in the early decades of the twentieth century, the rise of professionalism not only led to greater local efficiency and capacity, it also reduced the machine’s powerful hold on cities as municipal organization was no longer a skill primarily reserved to the boss. Certainly, machine activity would continue for decades into the twentieth century, but it became increasingly difficult for the boss to control positions within the machine and the people who filled them. The slowing of immigration, rise in

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worker’s unions, and the social policies initiated by the federal government in the 1930s contributed to this gradual reform. Conclusion

This chapter focused on the evolving political autonomy of localities from the colonial era to the early 1900s. We have seen that the nation’s localities began as powerful, self-governing bodies, but began to lose their autonomy in the late 1700s. Offered no protection in the U.S. Constitution, localities fell under state authority, a subordination that would be permanently established by Dillon’s Rule in 1868. The statelocal relationship shifted from distance to active intervention after 1830. It would shift yet again with the reform movement that took root in the 1890s, a movement that simultaneously empowered localities by distancing them from their states, while also encouraging localities to adapt to the new structures and business-like practices of the reformed municipal government. The early 1900s was a period of professionalization on the local and the state levels. The states assumed the role of administrative oversight and support to localities, but had yet to accumulate the experience to properly perform in this role. Localities, especially larger cities, were comfortable with their administrative abilities and able to support themselves financially. Thus, they enjoyed a few years of Berman’s power—intergovernmental influence and relative freedom from state control. Within a few decades, however, local independence gave way as federal intervention became necessary to address the problems associated with the Great Depression.

Notes 1

Schragger, “Can Strong Mayors?” p. 2574. Berman, Local Government and the States, p. 1. 3 Dilworth, The City in American Political Development, p. 2. Quoting Orren and Skowronek, The Search for American Political Development, pp. 108, 114, 120. 4 Schragger, “Can Strong Mayors?” p. 2550. 5 Tocqueville, Democracy in America, p. 63. 6 Burns, The Formation of American Local Governments, p. 45. 7 Glaab and Brown, A History of Urban America, p. 26. 8 Glaab and Brown, A History of Urban America. 9 Sbragia, Debt Wish, p. 87. 10 Frank Goodnow notes in City Government in the United States, New England colonies offered very few charters; most were confined to the central colonies. He reasons that this is due to “the vitality of the New England 2

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town…(which) gave to localities all the freedom of government that they desired.” This would change as the Revolutionary War. “…[B]y the beginning of the nineteenth century the only considerable urban community in the United States which was not incorporated was Boston, which, as late as 1820, continued to govern itself through the ordinary New England town organization.” 11 United States Advisory Commission on Intergovernmental Relations, Local Government Autonomy,” p. 29. 12 Goodnow, City Government in the United States, p. 48. 13 Ibid., p. 33. 14 Ibid., p. 31. 15 Ibid., p. 47. 16 Ibid. 17 Ibid., p. 50. 18 Ibid., p. 21. 19 Ibid., p. 49. 20 Ibid., p. 47. 21 Ibid. 22 Nobles, “Class” in Vickers, ed., A Companion to Colonial America, p. 281. 23 Ibid., p. 280. 24 Goodnow, City Government in the United States, p. 52. 25 Teaford, The Municipal Revolution in America, pp. 28-29. 26 Goodnow, City Government in the United States, pp. 52-55. 27 Teaford, The Municipal Revolution in America, pp. 55-56. 28 DiGaetano, “The Birth of Modern Urban Governance,” p. 259. 29 Ibid. 30 Ibid., p. 64. 31 Wright, “Models of National, State, and Local Relationships” in O’Toole, Jr., ed., Fourth Ed. American Intergovernmental Relations, p. 74. 32 Martin, The Cities and the Federal System, p. 29. 33 Savitch and Vogel, “The United States: Executive-centered Politics” in Denters and Rose, eds., Comparing Local Governance, p. 213. 34 Goodnow, Metropolitan America, p. 58. 35 Teaford, The Municipal Revolution in America, p. 68. 36 Ibid., p. 82. 37 Ibid., p. 88. 38 Ibid., p. 89. 39 Hodos, “Against Exceptionalism” in Dilworth, ed, The City in American Political Development, p. 48. 40 Teaford, The Municipal Revolution in America, pp. 64-66. 41 Hodos, “Against Exceptionalism” in Dilworth, ed, The City in American Political Development, p. 49. 42 Teaford, The Municipal Revolution in America, pp. 66-67. 43 U.S. Bureau of the Census. Population of the 24 Urban Places: 1790. 44 Teaford, The Municipal Revolution in America, p. 76. 45 Ibid., p. 77. 46 Glaab and Brown, A History of Urban America, p. 171. 47 U.S. Bureau of the Census, Historical Statistics of the United States from Colonial Times to 1957.

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41

Reader, Cities, p. 161. DiGaetano, “The Birth of Modern Urban Governance,” p. 266. 50 Ibid. 51 Glaab and Brown, A History of Urban America, p. 96. 52 DiGaetano, “The Birth of Modern Urban Governance,” p. 266. 53 Teaford, The Municipal Revolution in America, p. 105. 54 Glaab and Brown, A History of Urban America, p. 178. 55 DiGaetano, “The Birth of Modern Urban Governance,” p. 270. 56 Teaford, The Municipal Revolution in America, p. 115. 57 Hanlon, Short, and Vicino, Cities and Suburbs,” p. 16. 58 Ibid. 59 Glaab and Brown, A History of Urban America, pp. 32-33. 60 Harrigan and Vogel, Political Change, p. 34. 61 Ibid. 62 Goodnow, Metropolitan America, p. 57. 63 Berman, Local Government and the States, p. 55. 64 Hodos, “Against Exceptionalism,” p. 48. 65 Glaab and Brown, A History of Urban America, p. 172. 66 Berman, Local Government and the States, p. 20. 67 Glaab and Brown, A History of Urban America, p. 94. 68 Ibid. 69 Berman, Local Government and the States, p. 55. 70 Ibid. 71 Goodnow, Metropolitan America, p. 77. 72 Berman, Local Government and the States, p. 57. 73 Ibid. 74 Teaford, The Unheralded Triumph,” p. 111. 75 Krane, et al., Home Rule in America, p. 9. 76 City of Clinton v. Cedar Rapids and Missouri Railroad Company at 475. 77 Krane, et al., Home Rule in America, p. 10. 78 Ibid. 79 Glaab and Brown, A History of Urban America, p. 201. 80 Ibid., p. 179. 81 Stephen, Liberty, Equality, Fraternity, p. 154. 82 Berman, Local Government and the States, p. 61. 83 Ibid. 84 Glaab and Brown, A History of Urban America, p. 187. 85 Ibid., p. 181. 86 Ibid., p. 187. 87 Wiebe. The Search for Order. 88 Krane, et al., Home Rule in America, p. 11. 89 Woodrow Wilson revised by Edward Elliot, The State: Elements of Historical and Practical Politics, p. 336. 90 Teaford, The Unheralded Triumph, p. 8. 91 Ibid., p. 103. 92 Krane, et al., Home Rule in America, p. 11. 93 Ibid. 94 American Municipal Association, as quoted in Krane, et al., Home Rule in America, p. 12. 95 Krane, et al., Home Rule in America, p. 2. 49

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96

Ibid., p. 11. Berman, Local Government and the States, p. 64. 98 Ibid. 97

3 The Evolving Intergovernmental Environment

Of the many forces that have affected local autonomy and capacity in America, the evolution of America’s federal system of government is particularly significant. At the writing of the Constitution, the distribution of governmental powers and responsibilities provided the state and national governments distinct and separate spheres of authority. The Tenth Amendment further protected state sovereignty by reserving to them all powers not delegated to the national government; this included control of the localities within their jurisdiction. The courts have subsequently recognized and affirmed state and national sovereignty. As Justice Stephen Field put it in the 1872 Tarbel’s Case: “There are…two governments, restricted in their sphere of action, but independent of each other, and supreme within their respective spheres…Neither government can intrude within the jurisdiction of the other or authorize any interference therein by its judicial offices with the action of the other.”1 Since the Constitution was written, the nation has undergone enormous economic, social, and technological changes which, in turn, required state and federal relations to be reassessed and revised. Indeed, within only a few years of the Constitution’s ratification, the notion that there would be strong boundaries demarcating national responsibilities and state responsibilities, a notion usually referred to as “dual federalism,” proved too rigid to work in practice. For example, the national government desired to help finance “internal improvements…or other specific purposes”2 during the first 70 years of the young nation’s existence. The national government clearly had—and still has—an interest in the building of roads, railroads, and bridges, but many states at the time were so protective of their sovereignty that they refused most national aid out of fear that it would erode the hard line that they argued

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ought to exist between the two. Thus, until 1860, these layers of government remained essentially committed to separation in judicial, political, and operational matters.3 The powers that were divided between the two levels of government were not to be shared; one could only grow more powerful at the expense of the other. By the 1930s, however, the Great Depression required the states and the national government to cooperate and coordinate to secure the health of the whole. Because the distinction between governmental functions and responsibilities have blurred, the original, dualist interpretation of federalism has been widely rejected for one that recognizes the overlapping and interdependent nature of national-state-local relations. This current arrangement is commonly called intergovernmental relations. Deil S. Wright offers his overlapping-authority model to demonstrate this intergovernmental complexity. He defines its features: 1. Substantial areas of governmental operations involve national, state, and local units (or officials) simultaneously. 2. The areas of autonomy or single-jurisdiction independence and full discretion are comparatively small. 3. The power and influence available to any one jurisdiction (or official) is significantly limited. The limits produce an authority pattern best described as bargaining.4 The intergovernmental environment is necessarily political in nature. Because today’s governmental responsibilities are often shared among several governments, each must bargain, threaten, and lobby to protect its unique goals. Ideally, responsibilities would be sorted according to which government is best positioned, equipped, or politically able to meet a particular need. Local governments, however, having no legal power to deflect higher government demands, frequently find that costly and controversial functions are shifted to them, regardless of their capacity to perform their new duties.5 As will be seen, this fact offers some explanation as to why local activism is occurring. Localities have been variously included and excluded from participation in state policy- and decision-making activities over time. Some eras have been more open to local participation in making and implementing policies; others have been hostile to any kind of statelocal linkage. This chapter examines the history of state/local cooperation/noncooperation with an eye to explaining why and how local governments have gained and lost intergovernmental power during

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the period, 1930 to 1980, and why they may be more willing to defy higher authority today. Third Partners in American Federalism

Although the distinct boundary between state and national authority blurred in the 1800s, it was during the 1930s that the original interpretation of federalism was fundamentally and permanently changed. The problems associated with the Great Depression created new, increasingly complex expectations of all levels of government; to respond effectively, greater interaction between governmental units became necessary. The problems, policies, and programs associated with the era’s local conditions and governmental attempts at recovery are extensively discussed elsewhere. The discussion offered here is meant to demonstrate the nature of the new roles and status of localities during the period. It is well-known, for example, that the Great Depression introduced poverty, unemployment, homelessness, and all manner of ills to all types of localities. Particularly in the central cities, these conditions quickly became unmanageable by state and local leaders, a shortcoming that made national intervention into state and local affairs both politically possible and economically and socially necessary. As David Berman puts it: At that time, city officials from all over the country, but especially from large cities, clamored for federal assistance to meet the problems of unemployment, relief, housing, public works, and slum clearance. The federal government stepped in when it became clear that the states were not going to be of much help in providing relief or administering programs.6

The states, dominated by rural leaders and suffering from declining tax revenue, slashed much of the funding for social services that localities had previously received, worsening local conditions and the capacity of local leaders to confront them. Indeed, by the onset of the New Deal, “only eight states provided any money at all for relief.”7 Called upon to intervene, Franklin D. Roosevelt’s administration responded with the New Deal programs that were “concerned with stimulating or ‘organizing’ economic demand, quelling social unrest in the factories and the cities, and creating an environment for coordinating production and consumption.”8 A central focus was turning the housing market and its related mortgage and banking industries around.

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Administration leaders believed that an active housing market would create jobs, provide low income housing, and stimulate the financial sector. In addition, Roosevelt sought to ease the effects of joblessness by providing relief programs; local revenues were already exhausted by the time Roosevelt took office, the localities having had to provide relief during the early years of the Depression largely on their own. Finally, national leaders focused on infrastructure as both a means to upgrade and modernize the nation while simultaneously creating job opportunities. Federal money was not limited to the big cities; “school districts, counties, and other units of government had relatively free access to federal funds.”9 Mutual dependence was at the heart of the federal-local partnership: localities needed “national finances and the national government[] [needed]…local administrative support and leadership in swiftly implementing the emergency programs.”10 The new era of federalism arose from a “pragmatic focus on what [had] to be done rather than on which level of government should do what.”11Cooperation, interdependence, pragmatism, and shared responsibility: this was the language of the era.12 Calling most of the shots—and at least early on in consultation with local leaders—federal leaders rolled out a number of ambitious programs and an ever-increasing flow of financial aid to the struggling localities. For the nearly five decades that followed Roosevelt’s inauguration, there was a general acceptance, albeit sometimes a grudging one, of the interconnectedness of governments in the U.S.: What was harmful to localities was likely harmful to the nation and vice-versa. For cities, this amounted to a promotion from their former, somewhat isolated, position. They were now intergovernmental partners “in a system of cooperative federalism instead of being viewed as the bottom layer of governments in a three-tier federal system.”13 As Jerome Hodos put it, local governments entered the intergovernmental arena as “[de] facto if not de jure…third partners in American federalism.”14 As for the states, rather than resist federal assistance, they generally cleared the way for localities to participate in federal programs by passing enabling laws and altering their constitutions to accommodate direct federal-local interaction. It was, therefore, with state consent that the federal government assumed a prominent role in local affairs.15 Spurring the growth of federal programs aimed at local issues were several groups charged with promoting and defending local interests. Groups such as the United States Conference of Mayors (USCM), the National Association of County Officials, and the American Municipal Association (now the National League of Cities) were instrumental from

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the onset of the federal domestic programs of the period to those later introduced under Lyndon B. Johnson. Because the federal-local relationship furthered national goals, the efforts of these groups were successful in bringing great assistance to localities for decades. The new “federal-urban links” helped to “end[] the hierarchical relationship among levels of government in which the federal government interacted with the states, and the states with cities, that prevailed until the 1930s.”16 While the new intergovernmental arrangement promised to elevate local governments from “the bottom layer of government,”17 federal aid came with terms that acted to limit local autonomy.18 Local leaders were, however, in no position to refuse aid no matter the terms. 19 Adding to their desperation was the migration of the middle-class to the suburbs, a movement of wealth and talent that left cities, particularly central cities, with eroding tax bases and rising concentrations of urban poor. Riots, rebellion, homelessness, vagrancy, and worsening blight made serious competition with the emerging suburbs all but impossible. Federal revenue promised hope via downtown revitalization, crime control, economic development, housing development, and antipoverty programs, among others. An important condition attached to federal categorical grants, which provided funding for specific functions or projects, was the requirement that aid be distributed through administrative agencies that were separate from local governments, rather than directly through local leaders. Thus, even as local governments became increasingly dependent on federal dollars, they also lost autonomy to spend those dollars as they wished.20 Predictably, by the 1960s many local leaders’ excitement about a “partnership” with the federal government had begun to fade.21 Despite this, local leaders continued to press for new programs, and some were eventually able to negotiate aid that imposed fewer restrictions. 22 The general revenue sharing program of 1972, for example, allowed leaders in over 38,000 localities to use federal funds as they saw fit, with few if any strings attached.23 Much of this type of success can be attributed to the collective action of intergovernmental lobby groups such as the USCM. By 1978, “federal funds as a percentage of all municipal revenues rose to…about 17%.”24 But just as local governments grew increasingly dependent upon federal assistance, the once-mutual benefits of partnership faded. While local need for federal assistance remained strong, the federal government’s interest in urban, particularly central city, programs was in decline. Contributing to waning public support for urban programs25 was suburbanization, the U.S. Supreme Court’s “one

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person, one vote” decision in 1964 (Reynolds v. Sims), the decline of the national and local political parties, and the corresponding rise of interest group influence. Declining Federal Support

Much of the declining support for urban programs came in the wake of Reynolds v. Sims (1964) which caused legislative power to shift to the suburbs. New, conservative majorities in state legislatures quickly launched reform campaigns focusing on legislative professionalization. Common reforms included extending part-time legislative sessions to full-time, increasing salaries, improving facilities, and building larger and highly skilled staffs.26 The costs of campaigns skyrocketed in the ensuing decades, allowing interest groups to gain power in the state (and national) political arena. Suburban ascendancy, combined with these legislative reforms, contributed to the decline of urban influence in the state and national political marketplaces; professionalization brought legislative careerism and, consequently, competition for elective seats grew as the job became more attractive. Also contributing to the decline in support for national urban policy was the country’s limping economy. Congress struggled to manage the costs of funding the Vietnam War, rising oil prices, and the 1973-74 global recession. Such struggles were made worse by a relative decline in U.S. economic dominance due to competition from developing economies in Japan and Europe. Notably, even as the U.S. economy faded, the U.S. continued to subsidize the economies of Europe and Japan: focused primarily on anti-communism, U.S. policymakers decided to support economies overseas in an effort to halt the spread of communism. Accordingly, U.S. policymakers supported the growth of steel industries in Japan and Europe, for example, through policies like reducing tariffs on the importation of their steel.27 As a result, the market for U.S. steel declined and the nation began a swift transition into deindustrialization.28 (In 1947, the U.S. produced 57 percent of the world’s steel, 50 percent of the world’s manufacturing goods, and 80 percent of the world’s auto production. It produces less than 10 percent of the world’s steel, 13 percent of manufactured goods, and less than 40 percent of automobiles today. The percentage of the American workforce employed in manufacturing dropped from 32 percent in 1960 to only 8 percent in 2010.29) The lives of the American people were affected by these changes in very personal ways, particularly in 1974. In November of that year, unemployment soared to its highest level in 13 years: 6 million workers

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were jobless and inflation rose to double-digits.30 Interest rates rose. The economy slowed, the cost of goods rose, and a biting recession began. This recession was made worse by an embargo against shipping oil to the U.S. that the Arab oil states had imposed in reaction to U.S. support for Israel in its 1973 war with various Arab nations. The embargo brought pleas from Richard Nixon to American citizens to limit their driving; gas rationing was imposed in several states, and in some places chaos surrounded the gas stations that remained open.31 Truckers protested the costs of fuel and speed restrictions by blocking highways. The cost of sugar rose by 300 percent in one year, while auto sales dropped by 35 percent. At one point it was rumored that there would be a shortage of toilet paper—a fear that led people to hoard that vital staple.32 This was not an economic environment that would support redistributive policies benefitting central cities or poorer urban areas. Compounding popular frustration was the lack of urban progress and change. News from many urban areas, particularly big cities, was far from good, despite the now-infamous Great Society programs promoted by Lyndon B. Johnson. His “home runs” had not “cured” urban ills despite a steep and rapid increase in federal spending in regional and community development programs. “In 1962 the federal government spent $3.8 billion on these programs (in constant 2008 dollars; the actual figure that year was $445 million), and $24.2 billion by 1980 (2008 dollars; $9.2 billion in actual dollars).”33 Even with this federal funding, the concentration of people in poverty, those living in high-poverty neighborhoods, rose from 1.9 million, or 12.4 percent of the population, to 3.7 million, or 17.9 percent of the population, between 1970 and 1990.34 Deindustrialization certainly caused much of the pain as manufacturing jobs were lost, devastating some cities while creating new pockets of growth in other parts of the country. The Midwestern and Northeastern “Frostbelt” with its old, once-powerful, industrial cities generally suffered the most, while Sunbelt cities across the South and Southwest enjoyed the benefits of the newly emerging service economy. The booming growth of the Sunbelt began in the 1950s as corporations began to move South and West to enjoy friendlier business climates than could be found in the North.35 “In the five decades between 1940 and 1990, the population of the 15 Sunbelt states increased by 163 percent…compared to a population gain in the 14 Frostbelt states of 48 percent.”36 This contributed to the rapid demise of federal urban programs as Sunbelt conservatives joined ranks with suburban residents to promote a smaller federal government and liberal economic policies.

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Suburbanization was, perhaps, urban programs’ kill shot. This phenomenon, which was heavily subsidized by the federal government, drained wealth from central cities as middle class residents opted to leave central city problems behind to live in suburban developments. Suburban life—then and now—offers those who can afford it an alternative to central cities’ real or perceived problems like poverty, disease, vice, and crime, political corruption, public hostility, isolation, and loneliness. For people living in the suburbs, central city problems became distant—and the new suburban conservative majority wanted state and national leaders who would cut, if not end, urban-specific funding. Ronald Reagan’s New Federalism fulfilled the conservative majority’s wish. The End of Partnership

The “era of centralized federalism” (1964-1980) is well-documented in the literature, as are the national efforts to end it. By 2004, the National League of Cities “declared that the intergovernmental partnership was unraveling.”37 Others would later confirm this declaration. In 2010, Chris Hoene, Director of the Center for Research and Innovation of the National League of Cities participated in a roundtable discussion on the status of state and local governments facing the 2008 recession. According to him, “The federal government has spent twenty to thirty years breaking the IGR [intergovernmental relations] system. It’s now at the point where officials at the different levels of government do not know how to talk to each other anymore.”38 The federal government’s change of heart regarding urban programs coincided with the fizzling of popular and political support for national solutions to the country’s domestic problems. Some attribute this mood change to rising suburban interests or to partisan causes—and certainly these factors played a part. Popular frustration with taxation contributed by making the funding of programs specific to one group or area difficult to justify. Others suggest: city hall profligacy, overreaching liberalism, opposition to any federal intervention at the local level, radical conservative opposition to almost any governmental intervention at all, shifting priorities from people to place, White bias against the increasingly Black and brown central cities, the budget squeeze resulting from tax cuts and 1980s defense spending—all of these and more may be counted among the “whys” and “hows” of the demise of the urban policy arena. 39

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To whatever degree these causes contributed, popular and political will to reduce the size of the national government and to devolve domestic responsibilities and control back to the states paved the path for the reduction and elimination of many of the federal programs that many localities—and by then the states—had grown heavily dependent upon. Devolution

Under the Reagan administration, the economic ties between the federal and local governments would all but break. Reagan shifted the national focus from local economic revitalization to national economic growth by reducing federal regulation and spending. A number of programs that directly helped the cities were targeted. “Reagan proposed reducing or “zeroing out” the funding for numerous urban and social programs…cutting, in real-dollar terms, one-third of CDBG (Community Development Block Grant) money, half of mass-transit money, two-thirds of the monies available for employment and training, and 70 percent of the funding for the EDA” (Economic Development Administration).40 Federal disinvestment had the potential to devastate states and localities. Local governments were particularly affected. Federal aid to urban places declined by 47 percent between 1980 and 1987.41 Today, federal aid accounts for only about three percent of local revenue, down from its 1978 high of 17 percent.42 It is important to note that while most federal-urban programs held greater benefits for central cities, other localities were also harmed by devolution. In particular, the end of general revenue sharing affected “some 38,000 localities” many of which “had not enjoyed much federal aid previously.”43 If benefits were to be had with federal devolution, the “primary beneficiaries” were the states; it was to them that devolved responsibilities and the vast majority of future federal dollars flowed.44 But by the mid-1980s state legislatures were struggling under the combined weight of their traditional and their new responsibilities. The institutional and structural reforms toward professionalization that occurred at the state level during the 1970s were incapable of dealing with the functional responsibilities that accompanied federal devolution. Exacerbating matters was the economic recession of the early 1990s and an overall reduction in federal aid. Moreover, state and local struggles were compounded by growing “conditions on aid and unfunded federal mandates.”45 The states’ newfound capacity was sufficiently stressed such that by the mid-1980s states were “forced to downsize, streamline, and restructure,”46 a process that led many legislatures to shift burdens to

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localities. This practice continues today. The impact of this “shift-andshaft federalism” upon local authority, autonomy, and capacity was profound. As the federal government cut aid to states and localities, federal and state mandates grew. Despite the national government’s professed mission to devolve control and the popular desire to reduce centralization, Congress relied heavily on mandates as a tool to maintain its influence over state and local policymaking. “Among city officials and their national associations, complaints about unfunded mandates and federal preemption of local authority increased in approximately inverse proportion to the decline in federal aid.”47 Localities would spend nearly 40 percent of their revenues on federal and state mandate compliance by the mid-1980s.48 When local leaders called upon their states for greater aid and authority to manage their new duties, the states responded—but with far less support than was necessary to keep pace with rising local responsibilities. Local Autonomy and Discretion

Local governments in the United States must normally ask their state governments for powers they need or wish to exercise. Legal subordination means that local capacity—including the necessary authority, discretion, and resources to provide even the most essential services—is susceptible to existing and future state and federal laws, mandates, and preemptions, court determinations, and the actions of other governmental institutions, such as regulatory agencies or the courts. Since the nation’s founding, and throughout the twentieth century in particular, local governments have generally lost autonomy and adaptive capacity to the state and federal governments. A recent survey of city managers offers local perspective; according to them, The state is interfering more frequently in city matters and city policy space has shrunk. Some devolution has occurred, especially in service provision and finance, but it has been largely nonpurposive and has not empowered cities. City governments have found their discretion curtailed, their power and authority diminished at the hands of state government.49

When faced with pressing demands, local leaders today often find that their range of action is limited to a suboptimal few options, and sometimes to none at all. Responding to a recent survey, city managers

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reported that despite being made to work harder for higher governments, their capacity to function continues to worsen. They have suffered: significant intrusion by state government into city government affairs since 2000. On a scale from low (1) to high (4), the legislature, with a frequency score of 3.6, is the most regular intruder, followed by state courts (2.9). Less frequently occurring are intrusions or preemptions as a result of referenda or voter initiatives (2.2). As for the types of intrusive or preemptive actions, two particular types of actions pack a powerful fiscal wallop and happen often. According to city managers, state government since 2000 has regularly raided local revenue sources (3.3) and also shifted new costs to cities (3.5). Both of these activities weaken a city’s capacity to provide public services effectively. 50

Other preemptions unrelated to budgeting and finance have further hindered local capacity and adaptation; indeed, it is in policy areas unrelated to local finance that much of the activism over the past three decades has occurred. The political costs associated with taking a firm stance on “hot-button” issues frequently prevents elected leaders from doing their jobs. Thus, in the case of controversial policy areas, state legislators are often unwilling or unable to act.51 Even higher government leaders who want to help might not have the political wherewithal to build the necessary support. Part of the problem facing legislatures today is partisan gridlock and polarization. According to Jackie Byers, the Director of Research for the National Association of Counties: The Federal Government has been polarized for so long that they are not tackling the issues that are most important, like immigration, to localities. Border counties are being crushed by the services demanded of them due to the Federal Government’s dominance of certain issues and their failure to act. That’s why we have Arizona and Prince George’s County in the headlines. No one at the local level has over arching (sic) authority to solve these problems themselves. 52

The states can be—and frequently are—as gridlocked as Congress. Localities in this circumstance are, in a very real way, abandoned by their parent-state. With growing responsibilities and declining intergovernmental support, local governments looked to strengthen their own-source revenues. The traditional “mainstay” of local taxes has long been the property tax—it accounted for 82.4 percent of local own-source revenue and 73 percent of total local general revenue in 1902.53 However, during the 1970s, popular frustration led to a tax revolt that peaked in 1978

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with California’s Proposition 13, a ballot initiative that limited the government’s ability to raise local property taxes. California’s initiative resonated throughout the nation. Following California’s lead, citizens in states across the nation where ballot initiatives were legal introduced measures for tax relief while others appealed to their state legislatures for reform. Responding to citizen pressure, a number of legislatures imposed tax and expenditure limitations (TELs) upon their already struggling local governments, rendering property tax increases and borrowing difficult, if not impossible.54 (“By 2006, forty-six states had implemented state statutory or constitutional limits on local government tax revenue and expenditures, with thirty-one states placing limits on state taxes and/or expenditures.”55 In the late 1990s, following twenty years of tax revolt, property taxes provided only 37.6 percent of local own-source revenues and only 27 percent of total general revenues—a number that includes funding from all sources, like federal grants.56) As a consequence of losing the ability to raise property taxes, or at least to raise property taxes very easily, state and local governments moved to various “non-tax taxes” as a tool to raise revenue. Population growth, rising incomes, and a greater reliance on the service-based economy made more elastic revenue sources increasingly appealing to cities with healthy business climates and higher personal incomes. The mix of available local revenue sources varies widely across and within the states, but a broad list includes access to “general or selective” sales taxes, income taxes, user fees and various charges to businesses, professions, and occupations, and fees for franchises, gaming, various licenses and permits, “as well as interest income, municipal enterprises, rents and royalties, and utility funds.”57 The movement to these revenue sources has resulted in “a sea change in municipal finances”: In a dozen states charges and user fees are the “main” source of city revenues, in six states the primary source is the local sales tax, state aid is the largest sources in four states, and in one state business and commercial fees make up the bulk of city revenues…Municipalities in almost half of the states garner more revenues from sources other than the property tax.58

The growing pains associated with the transition of municipal revenues away from the property tax should not be obscured by local access to these new revenue sources. Remember that during this period the states had devolved functional responsibility for a number of programs to local governments, and that these localities were already suffering from federal cuts in aid. Also, although state aid to local

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governments during the same period increased in real dollar amounts, it declined as a percentage of local (and state) government spending. “The unpleasant result for local officials was a double whammy—not only had federal aid essentially dried up, but state aid was also eroding.”59 In recent years, local fiscal woes have been further compounded by the states’ inconsistent delivery of promised revenue and the regular “raiding” of local coffers by state legislatures.60 All told, localities are the clear losers in this era of “fend-for-yourself-federalism.”61 As one scholar put it: “If local governments are the ‘workhorses’ of American federalism, then ‘second-order’ devolution piled more work on the horse but gave it less to eat.”62 Today’s Intergovernmental Politics

Today’s intergovernmental politics—the interactions and activities between federal, state, and local units—are the cumulative product of past and present events and circumstances, combined with various expectations held by governments and the citizenry. Over time, all governments in the U.S. have evolved in light of changing conditions; this is evidenced in fluctuations to their status, responsibilities, structural changes, and shifting strategies to influence one another. Through this process, while local governments remain “virtually powerless”63 in the legal sense, they have found other ways to influence the system: “political forces have, in effect, altered the legal relationship between states and localities.”64 David Berman cites Harvey C. Mansfield’s declaration: “The multiplicity of elected local officials, their statewide organizations, the county and city political machines, and the locally oriented legislators make state-local relations usually in fact federal, whatever the theoretical plentitude of state powers.”65 Although the characterization of the state-local relationship as “in fact federal” is questionable—a federal system implies separate spheres of power among sovereignssomething localities are not—the political environment comprised of these groups and institutions is sufficiently powerful that the states sometimes tread lightly on local affairs: “One might argue that the…forces of localism – the elected local officials and their groups, the party and constituency ties of legislators …– while not altering the legal status of local units, nevertheless gives local officials an opportunity to have things their way on some issues at least and to carve out a sphere of independent activity.”66 Furthermore, David Berman reminds us that “looking at power in a zero-sum manner does give but an incomplete view of what has been going on.”67

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Cities, as intergovernmental players, have become increasingly active and important as the nation’s social, political, and economic conditions have become more complex. With complexity, the delineation between purely local concerns and those of intergovernmental importance has blurred. Every political development or economic disruption is an opportunity to shuffle the current distribution of “authority, finances, and responsibilities.”68 In the process, the scope of local formal or informal power may be enlarged; some argue, however, that more frequently localities have lost formal powers.69 This shuffling is often contentious—and always dynamic— leading Alberta Sbragia to reject the “bland, conventionally used, term intergovernmental relations,” for the more pointed term “intergovernmental politics.”70 While today’s intergovernmental environment is not the place of pragmatic partnership that cities once hoped it would be, local governments are at least sometimes allowed to sit at the table where decisions are made, state-local cooperation occurs, local-to-local cooperation is alive and well, and federal money makes its way to the states. But the intergovernmental arrangement is now so fundamentally altered from its original design that it is difficult to see “partnership” in the arrangement at all. Below, several features of today’s intergovernmental environment are discussed. While these features do not paint the entire intergovernmental picture, they may provide a snapshot into the forces and limitations that both empower and restrict localities within the intergovernmental system. The Power of Localism

With states holding plenary power over all things local, one might ask how localities manage to ever get their way. Part of the explanation for the ongoing tug-of-war for power and autonomy among localities and higher governments is deeply rooted in some of the nation’s core values: popular sovereignty and self-determination. Popular sovereignty holds “that each individual is the best judge of personal self-interest and that government action ought to follow the collective expressed views of the individuals who are affected by the public decision.”71 Local selfgovernance is the manifestation of these principles, allowing communities to determine for themselves how they will live, work, and play without, in its purest form, the interference of higher governments. Whatever the practical reality, these are values that America has internalized. Our appetite for localism dates to the colonial era, wherein geographic seclusion allowed localities to self-govern for 150 years with little interference; during those years, our reverence for localism planted

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deep roots that continue to this day as “a key value by which the quality of ….democracy is judged.”72 This historical sensibility is so embedded in American political culture, “local communities are viewed…as basic forms of social organization—extensions of the home and family—and as the backbone of democracy.”73 Because localism is a national value, it has utility as a political tool. Localism is used by states and localities as both defense and justification for specific actions. According to Richard Schragger: The problem for cities is that the ideological and formal commitment to localism is selective. State and federal officials intervene fairly regularly in local affairs but rarely to take on the baseline social welfare responsibilities of tax-base-dependent local governments. Indeed, formal localism often checks central interference when it would do certain localities the most good…74

State leaders pick and choose their reasons and occasions for local interference, manipulating the tenets of localism, frequently shunning local issues and requests, by using home rule as a political shield against complaints of state abdications of responsibility. Local leaders play this game, too. State interference, for example, may cause local leaders to raise their home rule or self-governance flag, such as when state leaders move in on a local function that is thought to be failing. When Detroit, Michigan, for instance, fell into budget crisis in 2011, state leaders began to explore placing the city under an emergency financial manager. The mayor of Detroit, David Bing, responded that the city “[would] lose control of [its] destiny to an emergency financial manager.”75 He argued, “This is our city…Detroit needs to be run by Detroit.”76 Despite protest, the city was made to submit to state-mandated crisis management in 2013. The same local leaders that defend against state action with arguments of localism may in other circumstances chide the state for neglect. Refusing to bail Detroit out of its crisis, for example, Michigan’s leaders were blasted by locals for allowing the city to teeter near bankruptcy.77 Cities want localism to work both ways. Local leaders have also been known to deflect new responsibilities by claiming they have no authority to act. Other times, localities have tried to assume responsibilities or authority—even when preempted—by claiming it critical to local well-being and responsiveness.78 However state and local leaders use localism—and by extension home rule—it is clear that it is a political tool sometimes used to influence others within the intergovernmental system.

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The Courts and the New Federalism

Ronald Reagan’s policy of New Federalism was furthered in the Supreme Court under Chief Justice William H. Rehnquist, Reagan’s 1986 appointee. A conservative, Rehnquist became known for his narrow view as it applied to federal involvement in state affairs. Although the bench was deeply divided, several decisions emerged from the Rehnquist court that served to limit Congress under the Commerce Power and the Tenth, Eleventh, and Fourteenth Amendments (Section Five). During the years that Rehnquist held office (1986-2005), federal interference into state (and, by extension, local) affairs was curtailed, allowing states the “breathing room” to experiment and challenge the federal government with some sense of autonomy. It is unclear whether the John G. Roberts Jr. court will continue the trend toward conservative federalism. Although appointed by George W. Bush (2005), the Roberts court—also deeply divided—has handed down several opinions that challenge conservative visions of federalism. The Patient Protection and Affordable Care Act (ACA), for instance, was upheld by the court, a decision in which Chief Justice Roberts sided with four moderate liberal members, earning him the title of both “traitor” and “statesman,” depending upon who is asked.79 For the purposes of local autonomy, the implication of a more moderate court (than Rehnquist’s) could mean greater centralization, or less autonomy at the state and local levels. Some states have signaled their frustration with this new development, perhaps most visibly by challenging provisions of the ACA. In 20 states, legislators have passed binding actions “related to challenging or opting out of broad health reform,” despite the Supreme Court’s 2012 decision. For our purposes, a return to centralization could mean greater use of push-back tools, such as local activism. The Rising Influence of Interest Groups

The rise in interest group activity over the past half century has been a troublesome barrier to local influence among intergovernmental players. The proliferation of interest groups after 1960 contributed to the decline in national urban policy and urban influence in state legislatures and Congress by crowding the field with group demands and financial leverage. At the state level, the number of lobbying firms and individuals grew from 196 in 1975 to 15,000 in 1980. In 1990, the number of lobbying firms and individuals had exploded to 30,000. There are more than 40,000 attempting to influence state legislators today.80 In

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2011, Opensecrets.org reported that 12,655 lobbyists actively lobbied at the national level. The influence of interest groups is largely revenue-centered. With the accelerated professionalization of legislatures in the states after 1964’s reapportionment, legislative seats became attractive career paths and competition for them grew; legislative careerism, as opposed to part-time service, became an option. Much of this change depended on the provision of sufficient legislative salaries: “In 1964-65, the median biennial compensation of lawmakers in the fifty states, including both salaries and expense allowances, was about $4,650; ten years later it was $18,200, rising 290 percent during a decade where the cost of living increased by 70 percent. The range in compensation, however, was enormous…”81 As legislative seats became more desirable, the cost of campaigns shot up. To raise the funding necessary for an expensive, competitive campaign cycle, legislators and their challengers leaned upon special interests which, in turn, gave them a direct line of communication with lawmakers. The growing influence of interest groups and other institutions—such as legislative caucuses—accelerated the decline of party power and “altered the terms of coalition building” to the detriment of urban areas. No longer would regional logrolling deliver benefits to urban areas; city leaders had to negotiate directly with suburban leaders who were largely unsympathetic.82 The legacy of these reforms is that in today’s intergovernmental arrangement, “State politics are increasingly driven by considerations removed from localities. The city is but one supplicant competing with many others to influence policy.”83 Local governments and their representative groups (such as the United States Conference of Mayors), however, are at a severe disadvantage in that they are prohibited from contributing financially to political campaigns. Competition among Governments

In recent years, state legislatures have assumed authority and, consequently, localities have lost autonomy, in a variety of traditionally local functional areas: land use and education are examples.84 In these cases, the local role has shifted from authority to administrative support—a change generally not favored by local leaders or citizens. In addition, as previously discussed, beginning in the mid-1980s, “transfers of program responsibilities from state and federal government, as well as the imposition of state and federal mandates…” has greatly expanded the functions of localities.85 When aid is forthcoming, it has often been both insufficient and its distribution unpredictable.86

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The intergovernmental tension caused by federal centralization and inaction, and by state “devolution” of functions to localities may be exacerbated by officials’ “credit claiming” and “blame avoiding.”87 Elected officials seek to “peel off pieces of governmental accomplishment for which he can believably generate a sense of responsibility.”88 One might expect the opposite to be true, as well: Elected officials seek to shed responsibility for governmental inaction or failures in order to avoid the costs of these failures. Indeed, one study found that these behaviors are quite common in state-federal relations. This is, in part, made possible by the complexity of the federal system which obscures the party or parties responsible for governmental successes and failures. The study claims: First, the federal system, along with often low levels of policy information among citizens, creates confusion over proper credit ascription for public goods. Second, citizens use a threshold method to assess the total production of public goods, with higher values being acceptable and lower levels being unacceptable, regardless of what share of the total each level of government is responsible for producing. Bringing these together we argue that, when there is confusion over credit assignment and the total level of production is acceptable, state lawmakers can continue claiming electoral credit and/or avoiding electoral blame for goods production even if their share of that production is shrinking. 89

This type of behavior is important to our study because blame not only hinders cooperation between governments, it is at the heart of local leaders’ explanations for their activism. In public statements, local activists invariably blame higher governments, claiming that state or federal inaction or unacceptable policies forced them to act. Credit taking is typically implicit: local leaders who initiate activism often claim they are protecting the rights of citizens or the interests of the locality; some use phrases such as “civil disobedience” and “defense of state and national constitutions.” Of course, if their activism results in policy change, they can claim credit for that, as well. The hostility that emerges within this intergovernmental environment prevents cooperation from easily occurring as local, state, and national leaders have difficulty simply communicating. A group of experts recently interviewed by Bruce Perlman led him to report that “…the state of IGR [intergovernmental relations] could be better. Unfortunately, [our experts] do not believe that it is getting better. Moreover, due to the strains of the recession and reconfigured federal programs, it may be getting worse.”90 In a recent survey, city managers

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in California reported their relations with their states to be “‘very poor,’ ‘broken,’ and ‘dysfunctional.’” Managers in other states used terms such as “changed” and “weakened.”91 The Power of the Servant: Noncooperation

An important part of today’s intergovernmental politics is found in “the power of the servant.” Jessica Bulman-Pozen and Heather Gerken introduced “uncooperative federalism” to legal scholarship to explain state behaviors that do not fit into either of the two most supported visions of state-federal relations.92 The federalism literature, they explain, commonly treats states (in relation to the federal government) as either “autonomous outsiders [or] supportive insiders.”93 These two visions, however, do not leave room for noncooperation—state acts of dissent, noncompliance, or defiance—“in the many areas where they lack policymaking autonomy and can be overridden by federal authorities.”94 The authors explain that uncooperative federalism is made possible by intergovernmental partnering: the more interdependent states and national governments become, the greater the opportunities for state defiance and resistance to federal directives and goals. When the success of federal policies requires state involvement in the regulation, partial funding, or the administration of programs, the federal government becomes dependent upon state for its expertise and cooperation. Power accrues to the states because “[r]ealistically speaking, Congress can neither abandon these programs nor “fire” the states and have federal bureaucrats assume full responsibility for them. The federal government needs the states as much as the reverse, and this mutual dependency guarantees state officials a voice in the process.”95 In addition, regular communication and the bonds of shared programs enable state officials to develop relationships with federal actors and an understanding of the workings of the larger system. Over time, they become integrated into the “web of connective tissues [that] binds higher- and lower-level decisionmakers.”96 Within this web, the states serve “two masters.” They are expected to administer federal programs in accordance with national goals, yet they are beholden to their constituents. When federal goals and citizen desires do not align, state actors may resist federal authority and legitimately defend their behavior with voter preferences. State actors, be they legislators or bureaucrats, can thus rely on a separate power base that possesses significant resources, stability, and stature. State officials are also accustomed to governing themselves.

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Even when they play the role of federal servant, they do so within a political and bureaucratic structure created at the state level. Because state officials are bureaucratic insiders who nevertheless draw power from outside the system, they have both the incentive and the political resources to challenge federal authority.97

Similarly, as increasingly important intergovernmental partners, local governments may have found state and national dependence upon them to be a source of power. Yet localities, unlike the states, are not autonomous entities; when resisting or defying higher authority, they rely on informal powers as defense, rather than sovereignty and its accompanying legal protections. Popular Discontent

Popular discontent provides political space for local activism to occur. In recent years, the nation’s citizens have lost confidence in higher government, especially the national government. Many feel that government is disconnected, no longer responsive to their needs and demands. Three decades of party polarization, gridlock, resistance, policy mismatch, negative campaigns, and fiscal incapacity has reinforced popular discontent with both state and national governments. The heightened use of direct democracy to change higher government policy direction is one sign of this discontent.98 The “Occupy” movement that emerged in 2011 is another. As higher governments prove unable or unwilling to act, demands that were once put to state or national leaders have shifted to the local level. To be sure, public distrust applies to all governments, but lately it has been less directed at the government closest to home.99 Local leaders may realize this and may feel it provides them latitude to act against undesirable higher policies, or perhaps, facing local pressure, they may actually feel compelled to do so. Conclusion

The partnership of the 1930s promised much to localities. The local ability to participate in the formulation and implementation of the nation’s urban policies elevated local status to “third partners” alongside the national and state governments. This partnership would grow increasingly coercive throughout the decades as localities grew more dependent upon federal money, and as they became increasingly less able to control urban affairs due to the creation of external boards and

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commissions and the mounting conditions of federal aid. The 1980s introduced federal devolution and severe cuts in urban spending. Soon after, cities found their autonomy and discretion increasingly constrained by federal and state preemptive laws and numerous unfunded or underfunded responsibilities.100 All the while, the nation moved through deindustrialization and toward the emerging global economy—economic shifts that presented new challenges to cities, sending some into decline, while promoting others to “world cities.”101 These changes have positioned local governments as important players in a variety of state, national, and international matters, yet they remain constrained as legally inferior to their states within our federal system. Today’s intergovernmental environment appears “broken” in numerous ways. Communication and cooperation are difficult to achieve; blame and credit-taking increases the intensity of competition among intergovernmental members and individual politicians. Localities are the least powerful, legally; thus, they are often beset with the politically and economically costly responsibilities that higher governments wish to deflect. All the while, local leaders struggle with the endless threat of decline. The tools and resources that higher governments might provide to relieve local dependence upon mobile capital and citizens are not forthcoming. Thus, localities are largely on their own, pressured from all sides to perform or face an all but irreversible decline.

Notes 1 Tarbel’s Case, 13 Wall. 397 (1872), cited in Wright, “Models of National, State, and Local Relationships” in Laurence J. O’Toole, Jr., ed., Fourth Ed. American Intergovernmental Relations: Foundations, Perspectives, and Issues, p. 74. 2 Walker, The Rebirth of Federalism, p. 68. 3 Ibid., p. 65. 4 Wright, “Models of National, State, and Local Relationships” in O’Toole, Jr., ed., Fourth ed. American Intergovernmental Relations: Foundations, Perspectives, and Issues, p. 82. 5 Bowman and Kearney, “Second-Order Devolution: Data and Doubt.” 6 Berman, Local Government and the States, p. 23. 7 Judd and Swanstrom, City Politics, p.126. 8 Florida and Jonas, “U.S. Urban Policy: The Postwar State and Capitalist Regulation,” p. 354. 9 Berman, Local Government and the States, p. 24. 10 Ibid., p. 23. 11 Ibid., p. 24.

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12

Ibid., pp. 23-24. Blair, Government at the Grass-Roots, p. 43. 14 Hodos, “Against Exceptionalism,” p. 55. 15 Berman, Local Government and the States, p. 24. 16 Flanagan, “Roosevelt, Mayors and the New Deal Regime,” p. 416. 17 Berman, Local Government and the States, pp. 23-24. 18 Hodos, “Against Exceptionalism,” p. 54. 19 Berman, Local Government and the States, p. 23. 20 Hodos, “Against Exceptionalism,” p. 54. 21 Berman, Local Government and the States, p. 25. 22 Ibid. 23 Ibid. 24 Barnes, “Beyond Federal Urban Policy,” p. 582. 25 Baumgartner and Jones, Agendas and Instability in American Politics, pp. 142-43. 26 Donovan, Mooney, and Smith, State and Local Politics, pp. 269-270. 27 Stein, Running Steel, Running America, p. 197-252. 28 Ibid. 29 Bureau of Labor Statistics, U.S. Department of Labor, “News Release: Employment Projections—2010-20.” 30 Blinder, “The Anatomy of Double-Digit Inflation in the 1970s.” 31 United Press International, “1974 Year in Review: Oil Crisis and Recession.” 32 Ibid. 33 Judd and Swanstrom, City Politics, pp. 212-13. 34 Jargowsky, “Sprawl, Concentration of Poverty, and Urban Inequality” in Squires, ed., Urban Sprawl. 35 Judd and Swanstrom, City Politics, pp. 234-255. 36 Ibid., p. 239. 37 Barnes, “Beyond Federal Urban Policy,” p. 586. 38 Perlman, “Governance Challenges and Options for State and Local Governments,” pp. 250-51. 39 Barnes, “Beyond Federal Urban Policy,” pp. 584-85. 40 Ross and Levine, Urban Politics, pp. 453-54. 41 Ibid. 42 Barnes, “Beyond Federal Urban Policy,” p. 586. 43 Berman, Local Government and the States, p. 26. 44 Bowman and Kearney, “Second-Order Devolution: Data and Doubt,” p. 565 45 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues,” p. 516. 46 Ibid., p. 513. 47 Barnes, “Beyond Federal Urban Policy,” p. 583. 48 Greene, “Counties and the Fiscal Challenges of the 1980s,” pp. 14-16. 49 Bowman and Kearney, “Second-Order Devolution: Data and Doubt,” p. 576. 50 Ibid., p. 572. 51 Schragger, “The Progressive City,” p. 39. 52 Perlman, “Governance Challenges and Options for State and Local Governments,” p. 251. 13

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53 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues,” p. 523. 54 Joyce and Mullins, “The Changing Fiscal Structure of the State and Local Public,” pp. 240-235. 55 Maher, Deller, and Amiel, “Property Tax Limits and Fiscal Burdens: The Role of Organization Structure,” p. 209. 56 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues,” p. 523. 57 Ibid., p. 524. 58 Ibid., p. 525. 59 Ibid., p. 516. 60 Bowman and Kearney, “Second-Order Devolution: Data and Doubt.” 61 Shannon, “The return to fend-for-yourself federalism: The Reagan mark,” pp. 34-37. 62 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues,” p. 515. 63 Berman, Local Government and the States, p. 3. 64 Ibid., p. 5. 65 Ibid. 66 Ibid., p. 6. 67 Ibid., p. 11. 68 Ibid., p. 2. 69 Ibid., p. 10. 70 Sbragia, Debt Wish, p. 7. 71 Krane, et al., Home Rule in America, p. 1. 72 Ibid., p. 7. 73 Berman, Local Government and the States, p. 4. 74 Schragger, “Can Strong Mayors Empower Weak Cities?” pp. 2563-64. 75 Web staff, “Governor Considering Emergency manager for Detroit, Bing willing to take the job.” 76 Davey, “In Detroit, an effort to prevent a state takeover.” 77 Nichols, Fleming, and Bouffard. “Bing makes call to action to fix Detroit’s fiscal crisis.” 78 Berman, Local Government and the States, pp. 8-9. 79 Caplan. “The Most Conservative Supreme Court.” 80 Donovan, Mooney, and Smith, State and Local Politics: Institutions and Reform, pp. 205-207. 81 Teaford, The Rise of the States, p. 202. 82 Weir, “Central Cities’ Loss of Power in State Politics,” p. 24. 83 Ibid., p. 33. 84 Ibid., p. 12. 85 National League of Cities, “Cities and the future of public finance.” 86 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues.” 87 Donovan, Taking Aim: Target Populations and the Wars on AIDS and Drugs. 88 Mayhew, Congress: The Electoral Connection, p. 53. 89 Nicholson-Crotty and Theobald, “Claiming Credit in the U.S. Federal System: Testing a Model of Competitive Federalism,” p. 248.

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90 Perlman, “Governance Challenges and Options for State and Local Governments,” p. 250. 91 Bowman and Kearney, “Second-Order Devolution: Data and Doubt,” p. 576. 92 Bulman-Pozen and Gerken, “Uncooperative Federalism,” pp. 1256-1310. 93 Ibid. 94 Ibid., p. 1266. 95 Kramer, “Understanding Federalism,” pp. 1485-1544. 96 Bulman-Pozen and Gerken, “Uncooperative Federalism,” p. 1270. 97 Ibid. 98 Smith, Greenblatt, and Buntin, Governing States and Localities. 99 Kincaid and Cole, “Public Opinion on Issues of Federalism in 2007,” pp. 469-487. 100 Eisinger, “City Politics,” pp. 308-325. 101 Gross and Hambleton, eds., “Global Trends, Diversity, and Local Democracy,” in Governing Cities in a Global Era.

4 Today’s Urban Environment

Having traversed several periods of shifting local and intergovernmental power, we arrive at today’s urban environment. In the last chapter, we examined the emergence and evolution of the intergovernmental system from 1930 to 1980. In this chapter, the environment within which localities operate is explored in order to understand the challenges and demands that condition today’s local leaders’ decisions and political strategies. Recall our definition of “urban” from Chapter 1: urban is considered to be any urbanized area that is served by a general purpose government. The Census Bureau’s definition of “urbanized” is generous: an urbanized place must have a total population of 2,500 or more and a population density of at least 1,000 persons per square mile. Also included in an urban area are surrounding census blocks with an overall density of at least 500 people per square mile. All territory outside urban areas is defined as rural.1 Today’s America is mostly urban; 81 percent of Americans live in an urban area.2 For our purposes, “urban” and “suburban” are not differentiated; I use “urban,” “city,” and “locality” interchangeably unless otherwise noted. Similarly, “downtown” applies to all urban areas, while “central city” applies only to core cities, rather than to their suburbs. We begin by addressing the current composition of the intergovernmental arrangement. The need for all localities to attract residents and businesses and some of the means by which they accomplish this is discussed. The chapter then explores the economic conditions within which cities operate, including the role of localities in the global economy. All of these factors are discussed with an eye toward examining not only why they are important to today’s urban environment, but also—often because of their importance—that they can be sources of intergovernmental friction. The gap between local capacity and authority and the urgency for local action is the space wherein

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decisions to engage in activism frequently occur. Finally, the management of urban challenges, including the decision to engage in local activism, is accomplished under the direction of local leadership. Thus, the modern mayor is presented as energetic and accomplished, an offspring of the 1970s “messiah mayors.” The Intergovernmental Arrangement

The United States’ intergovernmental system is comprised of nearly 90,000 subnational governments. In addition to the fifty states, the U.S. is home to over 3,000 counties, 19,372 cities, 16,629 towns or townships, 13,726 school districts, and nearly 35,000 single- or limitedpurpose special districts.3 Bringing these governments together are “a variety of factors: money, programs, political parties, and the play of interest groups among them.”4 Whatever the reason for their interactions, each encounter has the potential to change the balance of power among members of the intergovernmental system. The intergovernmental environment of any city is comprised of the national government, its state government, and any number of local units. Local decisions are made within an intergovernmental environment that is populated with thousands of equally powerful, or more powerful, governments; the political strategy that localities use to influence other governments depends greatly upon their position within it. The Chicago metropolitan area, for example, is home to nearly 1,500 jurisdictions in thirteen counties and three states—the most jurisdictions to be found in any metro area in the nation.5 Any combination of these governments has the potential to interact, depending upon the powers and authority granted them by their states, their needs, “functional responsibilities, and their fiscal and regulatory powers...”6 Put simply, any perception that localities fly solo is wrong. If a city desires to increase its tax rate, for example, it generally must consider and coordinate with other local units. Writes Pelissero: “The annual tax rate for a city government is often established after consideration of the expected tax rate change in the school district, county, and special districts serving the same taxpayers. An increase in one unit’s tax rate may prevent another unit from increasing its rate for the same year.”7 Local-to-local relations may be cooperative, as when local governments partner to provide services or coordinate taxing policies, traffic plans, or zoning policies. They may also be competitive and combative. Because powers and responsibilities are shared among the various levels and branches of government, none has complete control over decision-making or policy implementation. Access to key pieces of

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information, financial resources, or—as is often the case with localities—the ability to shape the delivery and efficacy of program services is not centralized. Thus, each layer of government needs cooperation to the extent that all are willing to accommodate the others at least part of the time. As David Berman put it: “They are, in effect, doing more than they have ever done, although less by themselves.”8 This arrangement permits otherwise powerless localities to sometimes participate in the state and national political arenas—and sometimes to their advantage. While legally subordinate, many cities are boldly entrepreneurial and aggressive. Indeed, “the most striking aspect of intergovernmental politics in the early 1990s was the increased willingness of local officials to fight challenges to their authority and financial well-being at both the state level…and at the federal level.”9 For instance, regarding mandates, local officials have waged extensive lobbying campaigns, put together comprehensive catalogs with assessments of the financial impacts of mandates, (taken) their complaints directly to the public through media campaigns and by attaching notices to tax and utility bills blaming mandates for increased taxes, initiated and campaigned for antimandate ballot measures, and brought court suits challenging the validity of mandates.10

As localities become increasingly self-sufficient and important to the intergovernmental system, and as the population within urban areas grows, state and federal governments may find themselves facing greater and emboldened local demands. As Jerome Hodos puts it, “In pushing cities to become more self-reliant…states are opening a can of worms: What happens when (not if) those cities decide that subordination to national interests is a constraint rather than a benefit? Will cities be able to force the pendulum of intergovernmental relations to swing back in their favor?”11 The Need to Attract Residents and Businesses

Stressors such as devolution, depopulation and suburbanization, the decline of the intergovernmental partnership, and changes to the global economy prompted local leaders to shift their attention to pragmatic solutions to local needs and goals. For the last decades of the twentieth century, the primary focus of most cities was on “public safety, the creation of a pro-business climate, the bureaucratic streamlining of city

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services, and a hesitance to adopt new taxes.”12 But today’s growing cities must also offer amenities, programs, and policies that support the increasingly diverse social, cultural, and ideological sensibilities of their current and future residents. Urban resurgence over the past two decades has partly turned on the successful transition to the new knowledge- and service-based economies, as well as the ability to attract a new workforce skilled in the delivery of knowledge and services. Key to success is the availability of job opportunities. The cultivation of an amenity-rich city is not sufficient to attract a new workforce.13 But for those cities that hope to position themselves as vibrant, livable locations, amenities may draw media attention, tourists, or attract industries that value long-term employment and see local quality of life as an important component to employee retention. Many localities that have become established as economic hubs—and those attempting to do so—strive to enhance their appeal to younger, highly educated, and increasingly diverse people who work in new, knowledgebased industries. Scholars argue that the key players in the modern “knowledge economy” are vital to any serious hopes of renaissance. These talented and creative people, such as scientists, engineers, professors, artists, designers, architects, writers, think-tank researchers, editors, and inventors, as well as people in allied sectors, such as high-tech industries, financial services, and business management, have strong views about where they want to live.14

It makes sense that savvy cities seeking growth will provide services and amenities that attract those workers and aggressively market themselves to that audience.15 Since the 1990s, for example, many cities have revitalized their downtowns and waterfronts. They have encouraged the redevelopment of old housing stock to high-end residential areas, and attempted to stimulate growth in cultural and other activities in hopes of drawing businesses, affluent residents, and tourists.16 Clark (2000) maintains that today’s educated workers are more likely to choose appealing locations, most notably those with attractive natural and cultural resources…As cities compete for mobile, skilled workers and the firms that employ them, low taxes may be less important than riverfront parks, sports arenas, and historic districts. Moreover, city officials have become ever more aware of the economic importance of tourism and have put a great deal of energy into building and enlarging convention centers…subsidizing new hotels, and attracting major retailers…17

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Those unable or unwilling to attempt these improvements may struggle. At risk is the loss of their young residents who may flee to better economic and social opportunities, tax bases and credit options may erode, and they may become increasingly dependent upon higher levels of government for their economic well-being. Reliance on intergovernmental aid, of course, has proven unstable and, when forthcoming, threatens to further erode local autonomy due to state or federal conditions of aid. In addition to providing amenities and social opportunities that are attractive to a new workforce, growing localities may benefit by cultivating and projecting a climate of tolerance. According to Richard Schragger, “[t]here is some evidence that local economic development is related to a jurisdiction’s relative openness to immigration or its relative level of political and social toleration, amenability to ideas, and tolerance of nontraditional life styles.”18 Consider Austin, Texas: The city has more than doubled its population since 1980, drawn by the influx of several major high-tech firms, such as Dell and IBM, among others. Certainly, Texas’ tax policy attracted these industries (no income tax), but so did the cultural life of Austin. Austin is ethnically and racially diverse, home of the Pachanga Fest, Austin City Limits, the South by Southwest Festivals, is liberal, and, in one celebrated theme, weird. The Keep Austin Weird campaign was launched in the early 2000s in reaction to the corporate influences that had descended upon the city the decade before. Writing for the Smithsonian magazine, ZZ Packer shared some of Austin’s weirdness: “East Austin and South Austin have undergone a renaissance that is half gentrification, half sustainable communities, with a strong locavore movement, community gardens and a new Mexican American Cultural Center.” She adds, “Austin links worlds, whether it’s vegans who chain-smoke, twentysomethings in cutoffs and flip-flops who eat pork belly sliders and do the two-step, or octogenarians who ride Harleys down South Congress.”19 The need to demonstrate tolerance may contribute to local activism decisions as it provides a controversial vehicle with which to project local tolerance to a wider audience. Related to urban tolerance is progressive policymaking, something that localities tended to avoid with the austerity of the 1980s.20 Recently, however, scholars have noted a “renewed energy and aggressiveness at the local level”21 involving progressive policy developments in health care, labor laws, environmental policy, and in matters such as public smoking, gun control, and living wages. Local policy innovation may be partly motivated by the desire to draw people and capital to cities. 22

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Demonstrations of policy innovation are likely attractive to the workforce of the new economy. But conservative activism may draw its own population and, although it appears to occur far less frequently than progressive activism, it should not be overlooked. The economic lifecycle of cities is described by Richard Schragger and in a later section in this chapter.23 Suffice it to say here that there may be stable or growing economic periods in which localities, particularly those of small or newer suburban jurisdictions, are able to take a protective, closed stance against new or undesirable, “high cost” residents or businesses. Indeed, it may be that for some time, when economic (and other) conditions within a jurisdiction are satisfactory, local leaders will resist progressive policies out of fear that they will cause “high value” businesses and residents to exit.24 Indeed, these jurisdictions may resist any type of growth at all, perhaps hoping to maintain the status quo. This approach might motivate some of the conservative local activism that has been documented in this study. In cases where same-sex partnership has been discouraged (see Chapter Six), or where local leaders are attempting to repel or expel undocumented immigrants (see Chapter Seven), it may be that their efforts are intended to retain or attract businesses or residents who prefer less redistribution, and thus lower taxes, or less diversity and the real or perceived benefits that accompany homogeneity. Economic Conditions

A city’s current economic outlook—its place in the cycle of economic prosperity and retraction—greatly influences its behavior and political strategies. Following Alberta Sbragia’s lead, I apply the notion of institutional self-interest to help explain the behaviors of today’s localities. At its core, the local self-interest is the survival of the institution. Survival is dependent upon maintaining the economic wellbeing of the locality; thus, local leaders make economic concerns their central focus.25 And because cities must generate for themselves a large portion of their revenue, building and maintaining the local tax base is a central preoccupation. Opportunities for economic growth are scarce, and localities cannot control the inward and outward flow of people and capital across their borders; thus, they compete for stability and new growth, each hoping to secure “as much capital and as high a quality labor force as possible.”26 Cities new or old, regardless of their economic health, eventually compete. They seek growth by offering incentives to new investors such as, for example, donated public property, tax breaks and/or zoning

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exceptions, or industry-friendly infrastructure and other services and amenities.27 These incentives sometimes result in a net loss to the local till, but many leaders feel compelled to offer them, understanding that failure to stave off decline—or to at least perpetuate the illusion of prosperity—invites political and economic devastation and, eventually, the threat of state intervention. People and capital are highly mobile, and today more than ever. While this reality has challenged state and local leaders throughout the nation’s history, over the past several decades winning and retaining industries and people has come to require more than competitive inducements or the satisfactory provision of basic public services. Today’s cities are expected to enhance their citizens’ quality of life with policies and programs that appeal to the increasingly diverse social, cultural, and ideological sensibilities of current and future residents. Thus, most “economic” and “non-economic” policies share the same underlying motivation—to stabilize and/or grow the local economy. Revitalized waterways and parks, public festivals and concerts, noise and peace-keeping ordinances, and tolerance or intolerance for late-night establishments are just some of the efforts that contribute to the local quality of life and enhance the city’s image as a welcoming and livable place. While they serve obvious purposes, less obvious is local leaders’ intent to maintain their tax base through lifestyle enhancing measures. There are, however, no guarantees of success. Competition for tax base growth is intense, increasingly so as regional and global economic flows and hubs are now entrenched: “Cities with a declining economic base can seek to attract investment, though once a city is isolated from regional or national economic relationships, those relationships are often difficult to reestablish.”28 To avoid economic marginalization, leaders of declining or threatened jurisdictions are inclined to accept sub-optimal development, allowing in—for better or worse—the industries and residents that better positioned localities can afford to avoid. Sensing decline, residents, businesses, and industry may leave for better positioned cities. As a result, local capacity to provide essential services—much less to recover economic healthfulness—spirals. Eventually, usually very late in the process of decline, state governments will take over some or all local operations and related finances. Detroit, Michigan, for example, is under the authority of a state emergency financial manager at the time of this writing. Detroit’s mayor announced in November 2011 that the city’s financial crisis and broken government could no longer suffer “the apathy that has paralyzed Detroit for decades.”29 Facing the threat of take-over by a state emergency manager—an action the mayor called “premature”—the city

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attempted to “save [itself] from insolvency [by] outsourcing services, demanding union concessions and hiking the corporate income tax.”30 In addition, the mayor demanded that the state return more than $220 million in revenue sharing to the city. This is in reference to a 1998 agreement between Detroit and the state; Detroit agreed to lower its income taxes in exchange for guaranteed revenue from the state—a deal that the state failed to honor. The city’s survival is at stake. Between 2000 and 2010, Detroit lost 25 percent of its population, dropping to 713,777 (its 1910 population count). It carries a budget deficit of $327 million and more than $14 billion in long-term debt. Over 80,000 of its housing units are unoccupied. Of course, not all cities are in decline at the same time. Those that are comfortable with their current status may even discourage expensive growth for a time, and perhaps altogether. Richard Schragger explains: Homeowner- or developer/large landowner-dominated jurisdictions (typically newer and almost always suburban) will often deflect expensive new development and residents through exclusionary landuse-based policies, even when such development will reap benefits to the tax base and reduce the individual tax obligation in the long term. The cost of the new infrastructure required to accommodate growth may translate to higher taxes; and strategies to win new industries often require financial inducements that must be supported by taxpayers. Once developed, new industries will likely draw job seekers and their families, and these new residents may alter the city’s socio-demographic mix, potentially bringing demands for expensive governmental services, such as the need for new public schools or public aid programs.31 Thus, while the resources for new development and expansion may be available, some cities guard the status quo with defensive, protectionist policies, only shifting to competitive strategies when, inevitably, the winds of economic decline begin to blow.32 Forced into self-reliance, local revenues have become increasingly diverse and these new sources—service fees, local sales taxes, etc.— have proven relatively robust. Local governments have emerged from the trials of urban disinvestment and devolution with professional, competent managers who are strong political figures. Many cities have become energetic economic competitors, some gaining national and international visibility, and (especially lately) renewed status as vibrant and desirable places to live, work, and visit. The economic, social, and technological changes of recent decades that threatened the financial well-being of localities also provided the opportunity for cities to secure a degree of financial independence and to expand their role and status within the intergovernmental system. The

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retraction of federal urban programs during and since the 1980s left many to fend for themselves. Concurrently, the decline of the national industrial base drained local jobs; new immigration and in-migration affected localities in a variety of challenging ways; ongoing suburbanization drained resources and political clout from central cities; and localities were made to confront the global economy as competitors, or accept their fates otherwise. Local leaders in the last decades of the twentieth century confronted these changes with severely limited local power and policy options. The “limits” on local autonomy, “a phenomenon particularly characteristic of the twentieth century,”33 had concentrated, and local leaders were forced to creatively adapt to the “gaps between (their) resources and responsibilities.”34 Their progress, overall, is laudable. According to one observer, Cities enter the twenty-first century in a strong position. They have a better capacity to govern. Their economic base is stronger. They are attractive venues for conventions, tourism, and world commerce. Leaders and institutions of city government have become more inclusive and responsive. Urban schools have improved, as a result of the implementation of school governance reforms.35

Certainly, America’s urban areas continue to struggle, but many have evolved from reactive to increasingly proactive players, locally, intergovernmentally, and even globally. Today’s localities are semiempowered and competent units of government and, as the implementers of higher government programs, they are increasingly important to the success of state and national policies. Global Players

While yesterday’s U.S. local economies relied heavily on manufacturing, today’s growing industries are knowledge- and servicebased. Yesterday’s economies were, to a large degree, built upon placebased advantages, such as transit routes and desirable natural resources—water, wood, coal, and so forth. Today’s growing industries, however, are far less dependent upon geographic location and natural resources, and few firms require the “large, relatively fixed labor pools” that manufacturers once did.36 It should be noted that “place” still has meaning in the sense that firms and people tend to cluster in regions; consider Silicon Valley, Nashville’s music industry, Texas’s golden triangle, and also the nation’s “world cities,” such as New York, Los Angeles, and Chicago.37 However, because firms can choose from a

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catalog of clamoring U.S. and international sites, many of the placebased competitive advantages that once attracted and held industries are gone. “Some observers take the view that the forces of globalization require cities to fight tooth and nail for ‘footloose capital.’”38 Theoretically, any far-flung locality might survive, or even boom, in the new economy, provided it can attract sufficient inward investment—and that is the rub. The term, “globalization,” encapsulates “the process through which an ever-expanding free flow of goods, services, capital, people and social customs leads to further integration of economies and societies worldwide.”39 Important to this definition is the word “process.” Rather than occurring in all nations at once, globalization has been uneven, often described as a series of waves. While some nations were part of the first wave of globalization which occurred between 1870 and 1914, many others are just now joining the second wave. It was not until the 1980s that economists recognized that globalization in its modern form had emerged.40 According to one observer, it quickly became apparent that the world had become “a much smaller and qualitatively different place” where “almost all national economies are integrated into a single global marketplace through trade, finance, production networks, and a dense web of international treaties and institutions.”41 Indeed, it was Harvard Business School’s Theodore Levitt who first referred to the flattening of the world’s markets as “globalization” in his article, “The Globalization of Markets,” published in the 1983 Harvard Business Review.42 The concept quickly caught on. Academics believe that this second wave of globalization was facilitated by several factors: Transnational free trade agreements, such as the North American Free Trade Association and the European Union, allowed for developing and post-communist countries to enter the global economic arena as both suppliers of manufactured goods and as new consumers. In addition, liberalizing institutions and new technologies, such as television and global news networks, fast and freer travel, and the explosive growth of Internet usage have contributed to the emergence of the global market as consumers around the world are exposed to goods and ideas previously unavailable to them, and global corporations emerge to provide those goods.43 The cumulative result is a marketplace without borders wherein technologies help to define the world’s preferences and globalized corporations capitalize from those homogenized preferences, producing high-quality goods at a lower cost than can be achieved by smaller scale production. Observers emphatically agree that the current wave of globalization is remarkable in its scope and pace. Within a few decades nearly every

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nation in the world became economically integrated. “Foreign direct investment and capital flows which totaled around $160 billion in 1991 soared to over $1.1 trillion in 2000 and accelerated to $2 trillion in 2005, while cross-border capital flows—including debt, portfolio equity, and direct investment-based financing—topped $6 trillion in 2005.”44 Whether this scale and speed is a good thing is a topic hotly debated. Some believe that globalization “promote(s) growth and reduce(s) poverty,” essentially benefitting all countries and peoples, “lift(ing) all boats.”45 Others claim that the liberal economic policies associated with globalization exposes nations to turbulent and imperfect markets, excessive debt, and problems with currency fluctuations and liquidity:46 “the Janus-faced nature of capital flows has the capacity to both improve and destabilize an economy.”47 To be sure, due to global integration, local leaders across the world face enormous challenges; the fortunate also enjoy terrific opportunities for growth and innovation. In the new economy, with its “new centers and margins,”48 successful competition means aggressive marketing and becoming established as an important “node” in the regional and global “economic flow.”49 To participate in the new economy, a city must establish itself within the regional economy as having a purpose within the flow— perhaps becoming a center of finance, education, technology, or culture, for example. Most old-line, industrial cities and suburbs have found this task particularly difficult. Because “the development of human capital— educational attainment, skills, training, knowledge”50—is vital to the new economy, those that had histories in financial, medical, technological, and other knowledge-based industries enjoyed a head start. But it appears that this is not enough. Rather, local governments must also appear distinctive: “Clearly, cities need to ensure that they are attractive places in which to live and work if they are to enjoy economic prosperity, but many city leaders now realize that it is the distinctiveness of a city that holds the key to economic success. Divergence, not convergence, appears to be a wise path for the future.”51 The need to diverge requires innovation and, thus, entrepreneurial leadership. New Leadership

City leadership had already begun to move toward self-sufficiency in the mid-1970s. New Federalism’s policies of devolution intensified the impact of globalization, producing a variety of political changes at the local level. Having learned the harsh lessons of dependency, facing intense budgetary pressures, and sensing a changing economy, many local leaders modified the way they managed their cities. Their shift

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from dependency was, in certain ways, a return to their former selves. Dennis Judd tells us that the period from the 1930s “to the early 1980s…constituted an interruption from the historic norm.”52 This period of increasing local dependence stands in contrast to the “strong leadership” that characterized local politicians before the Great Depression. “All through US history, urban leaders had shown a freewheeling tendency to experiment with the powers of the local state, and to use those powers to promote local economic prosperity. Their fortunes were tied to local success, and no one was going to bail them out if they failed.”53 Self-sufficiency was expected and critical to local survival. Jon Teaford introduced the concept of new, entrepreneurial mayors of the 1970s as “messiah mayors” due to their messages of revitalization in spite of the decline in urban programs, the onset of deindustrialization, a relentless exodus to the suburbs, migration to the South and West, and already-devastated downtowns.54 These were the likes of Richard Daley, William Schaefer, Norm Rice, and William Hudnut, to name a few. By the mid-1990s, the messiah mayors’ strategies of change—focusing on austerity, public-private partnerships to encourage corporate investment in downtown redevelopment, as well as a strong emphasis on tourism, culture, and entertainment—had begun to work. While these leaders are mostly gone, their legacy informs today’s mayoral approach. The movement to empower mayors in recent years suggests a growing trust in local leadership: “a number of largeand medium-sized cities have switched to a strong-mayor structure, while some with weak-mayor charters have eliminated barriers to executive authority…Manager-led cities are increasing the power of their mayors.”55 Building upon the aggressive and business-minded approach of their postwar predecessors, many of today’s local leaders recognize the need to compete for, and bargain with, private investors for their city’s economic growth and stability. New to today’s leader is his or her global reach: it is not unusual for leaders to seek foreign trade and investment. This elevates the stature of the local office, empowering leaders to act politically in ways that reach beyond the traditional boundaries of the city. Consider the visibility of, for example, New York’s Michael Bloomberg, Newark’s Cory Booker, Philadelphia’s Michael Nutter, San Francisco’s former mayor, Gavin Newsom, as examples of this new style of leadership. Today’s local governance requires different skills than in the past as old coalitions between mayors and corporate leaders have eroded. Globalization has reduced the power of CEO-led organizations in big

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city matters: “Corporate buyouts, mergers, and the internationalization of corporate structures have reduced the ranks of business leaders interested in local politics.”56 Instead, today’s local leaders of large and small cities work closely with “developers, the leaders of nonprofit organizations, and professionals working in cultural institutions” to revitalize downtowns and to grow new opportunities.57 In addition, many of today’s leaders must skillfully navigate the competing demands of their increasingly diverse populations. Competent leadership in each of these areas is crucial; there is evidence that the success or failure of localities under globalization depends heavily on the skills of local leaders.58 The austerity of the 1980s forced a return to strong, experimental leadership. When localities were dependent upon federal revenue, the desires of the federal government were paramount. When that revenue slowed to a trickle, and localities were made to fend for themselves, they gained the freedom to color outside the lines. Their subordinate legal status remains intact, but the loss of federal revenue and the responsibilities and costs devolved to localities by their states may have tipped the scale toward non-cooperation. Today’s leaders may again be “free-wheeling,” following the entrepreneurial model of their predecessors, modified to suit today’s economic, political, and cultural climate. Responsiveness

Citizens’ expectations for heightened services—which they are often unwilling to pay for—places pressure on local leaders to do more with less.59 Responsiveness to citizen demands is critical for local well-being, but meeting popular expectations has become increasingly difficult. Over the past two centuries, local leaders have struggled with inadequate authority and capacity to satisfy citizen expectations and demands. Nonresponsive cities invite population and economic decline. In the 1950s, David Easton asked: “How do any and all political systems manage to persist in a world of both stability and change?”60 He identified “the life processes of political systems...through which certain kinds of inputs are converted into the type of outputs that we may call authoritative policies, decisions and implementing actions.”61 A political system will persist if it converts inputs into outputs that reasonably reflect the values and desired shared by most of the people in a society, most of the time. “Local legitimacy depends greatly on the capacity of local government officials to respond to local citizen demands for public

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goods and services and to administer local policy choices effectively.”62 Simply, local leaders’ inability to respond to local needs and citizen demands threatens the survival of the system. It makes little difference that the cause of neglect may fall beyond local control. In this situation, defensive local governments may publically inform their citizens of the intergovernmental, or other external conditions, responsible for disrupting local remedies. When informing fails to satisfy, some choose to play offense. Adequate capacity to adapt is critical for the stability of the local political system. As previously discussed, as the “‘workhorses’ of American federalism,”63 localities must not only address their own very demanding needs and responsibilities, they are often called upon to implement policies and programs created by state and national leaders. This “agent” function is partly pragmatic: local governments, after all, are closest to the people and the conditions that many higher government programs are designed to address. The expansion of local functions is not always welcome, however, particularly when they are made to assume new financial responsibilities, or when the implementation of higher government programs inhibits attention to local goals and needs. In addition, state and federal leaders have recently neglected to address a variety of issues that deeply affect local capacity and quality of life. For example, since the 1980s, state and federal leaders have failed to adequately address problems related to immigration, education, health care, and criminal justice as well as a variety of controversial, progressive policy matters including living wages, same-sex couples’ rights, and environmental reform.64 A state that preempts local remedies to these issues hinders local capacity to react to changing circumstances or citizen demands. The resulting restraints are so binding that local leaders may be unable to effectively respond and manage local conditions, an outcome that compromises self-determination and popular sovereignty and the relationship between citizens and local leaders. In response, some cities are refusing to passively wait for their fortunes to change. State (and federal) inaction across a variety of policy areas of local importance has motivated local governments to “fill the gap” with policies of their own. Local policy innovation and entrepreneurship is generating excitement in policy studies, urban politics, legal studies, and other fields. A prominent legal scholar, for instance, has noted the “flowering of progressive policy developments” at the local level involving living wages, health care, environmental policy, and same-sex couples’ rights.65 He credits this activity to “a

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growing dissatisfaction with national responses…and a renewed energy and aggressiveness at the local level.”66 Other scholars have looked at local innovations in policy areas such as gun control,67 antismoking laws,68 and curbside recycling efforts.69 Today’s conditions seem ripe for local policy innovation and increased local activism. Local leaders, because of popular discontent, are freer to challenge higher authority without fear of backlash, and they are freer to blame higher governments for policy experiments gone wrong. While most local leaders have not strayed from the conventional, diplomatic path of political behavior, some have, perhaps viewing popular discontent as a signal to “do something”—even something extra-legal—about the problems that the national and state governments cannot or will not address. Conclusion

Despite their lost autonomy and limitations, localities are not powerless. Large and small, they are important to the state and federal governments for a variety of reasons, not least is the implementation of higher government programs. They are the building blocks of regional and global economies, policy innovators—the nation’s laboratories. For most of us, they are also our homes. Localities are the products of their past decisions and conditions. Having inherited legal subordination, the power of today’s localities is in their ability to influence other governments in the intergovernmental arena. While they are formally weak, political forces, such as localism, allow them to defend against higher governmental imposition, sometimes successfully, and to justify local policy decisions and behaviors when they cross formal limits. Localities also derive power from their self-reliance—they have less to lose and higher governments have less leverage to compel local cooperation. Localities further benefit from higher government dependence upon them to accomplish their goals. Localities are self-interested—their survival depends upon their ability to maintain their economic well-being. The decisions and policy actions of higher governments affect local authority and capacity, sometimes preventing them from addressing their problems or responding to local demands. This is a real threat to economic wellbeing as unhappy businesses and residents can and do leave for more promising prospects. Thus, motivating today’s energetic and bold leaders are three decades of state and national inaction involving a range of policy areas of local concern. Local leaders are frustrated with

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ongoing state and federal neglect and abuse, and their recent resurgence and elevated political clout may encourage some these leaders to step away from their prescribed, formal limitations in attempt to compel higher policy change. Having lost confidence in higher governments, local leaders are cobbling together their own policy remedies when possible, and attempting to generate higher government policy movement when it is not.

Notes 1

U.S. Census Bureau, Urban and Rural Classification. U.S. Census Bureau, “Growth in Urban Population Outpaces Rest of Nation,” Census Bureau Reports. 3 U.S. Bureau of the Census, 1997 Census of Governments, p. 3. 4 Berman, Local Government and the States, p. 19. 5 Hamilton, “Regimes and Regional Governance,” p. 409. 6 Rich, “The Intergovernmental Environment,” p. 37. 7 Pelissero, ed., Cities, Politics and Policy, p. 13. 8 Berman, Local Government and the States, p. 11. 9 Ibid., p. 29. 10 Ibid. 11 Hodos, “Against Exceptionalism” in Dilworth, ed, The City in American Political Development, p. 58. 12 Schragger, “Can Strong Mayors?” p. 2550. 13 Storper and Manville, “Behavior, Preferences, and Cities,” p. 1252. 14 Gross and Hambleton, eds., Governing Cities in a Global Era,” p. 7. 15 Schragger, “Cities, Economic Development, and the Free Trade Constitution.” 16 Kantor and Judd, American Urban Politics in a Global Age, p. 3. 17 Strom, “Culture, Art, and Downtown Development” in Kantor and Judd, eds., American Urban Politics in a Global Age, p.108. 18 Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” p. 523. 19 Packer, “Keeping it Weird in Austin, Texas,” Smithsonian Magazine. 20 Schragger, “The Progressive City.” 21 Ibid., p. 39. 22 Ibid. 23 Schragger, “The Free Trade Constitution.” 24 Tiebout, A Pure Theory of Local Expenditures. 25 Elkin, City and Regime in the American Republic, pp. 33-35. 26 Peterson, City Limits, p. 29. 27 Schragger, “Cities, Economic Development, and the Free Trade Constitution.” 28 Ibid., p. 1157. 29 Nichols, Fleming, and Bouffard, “Bing makes call to action to fix Detroit’s fiscal crisis.” 30 Ibid. 2

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31 Schragger, “Cities, Economic Development, and the Free Trade Constitution.” 32 Ibid. 33 Sbragia, Debt Wish, p. 2. 34 Schragger, “Can Strong Mayors?” p. 2576. 35 Pelissero, ed., Cities, Politics, and Policy: A Comparative Analysis, p. 2. 36 Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” p. 503. 37 Ibid. 38 Hambleton and Gross, “Local Management in a Global Era,” p. 14. 39 Sharma, “The Many Faces of Today’s Globalization,” p. 1. 40 Ibid. 41 Ibid., pp. 1-2. 42 Levitt, “The Globalization of Markets,” pp. 92-102. 43 Ibid. 44 Sharma, “The Many Faces of Today’s Globalization,” p. 2. 45 Ibid. 46 Ibid., p. 12. 47 Ibid., p. 13. 48 Gross and Hambleton, eds., “Global Trends, Diversity, and Local Democracy,” p. 7. 49 Castells, The Rise of the Network City, p. i. 50 Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” p. 523. 51 Hambleton and Gross, “Local Management in a Global Era,” p. 14. 52 Judd, “Strong Leadership,” pp. 951-961. 53 Ibid. 54 Teaford, The Rough Road to Renaissance, pp. 253-307. 55 Schragger, “Can Strong Mayors?” p. 2550. 56 Kantor and Judd, American Urban Politics in a Global Age, p. 3. 57 Ibid. 58 Goetz and Clarke, eds., The New Localism. 59 Kincaid and Cole, “Public Opinion on Issues of Federalism in 2007,” pp. 469-487. 60 Easton, A Systems Analysis of Political Life, p. 17. 61 Ibid. 62 Krane, Rigos, and Hill, Jr., Home Rule in America, p. 3. 63 Krane, Ebdon, and Bartle, “Devolution, Fiscal Federalism, and Changing Patterns of Municipal Revenues,” p. 515. 64 Schragger, “The Progressive City,” p. 39. 65 Ibid. 66 Ibid. 67 Godwin and Schroedel, “Policy Diffusion and Strategies for Promoting Policy Change,” pp. 760-776. 68 Shipan and Volden, “Bottom-up Federalism,” pp. 825-843. 69 Feiock and West, “Testing Competing Explanations for Policy Adoption,” pp. 399-419.

5 Activism as a Strategy for Policy Change

This book uses the term local activism to indicate a unique class of local political behaviors. These behaviors are official acts of defiance that can reasonably be understood as deliberate attempts to spotlight unfavorable higher laws and policies in order to engage the media and “expand the scope of conflict”1 to the public. Local activism is not accidental; these deliberate actions are highly visible, undeniably critical of higher policy and authority, and nearly always contradictory to higher policy goals. By engaging the public, activist leaders hope to compel higher governments to defend their policy positions or to change them, voluntarily or through the courts. In this chapter, we will turn to the literature on protest movements and policy diffusion to explore local activism as a political “resource” for localities.2 Although activism can be a positive resource, it has the potential to cause harm. When engaging in activism, local leaders act in unmistakably defiant, arguably subversive, ways. These activists expose their careers to potential harm and their jurisdictions to the possibility of costly litigation, reputational damage, and strained intergovernmental relationships. Why take these chances? The literature on policy entrepreneurship and innovation, as well as recent work related to statelevel activism, may suggest possible motives of local activists. Finally, a survey of the range and scope of local activism is provided. Activism as a Political Tool

In his work on protest and social movements, David Meyer claims that “powerful authorit(ies)” are targeted for activism by those who have “some kind of a serious grievance” but are “ill positioned to win through conventional tactics alone.”3 The protest activity itself is a performance

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designed to gain media, interest group, and public attention—and hopefully public support. These activists possess a “level of cynicism, frustration, or pessimism about getting a response without social protest”; thus, protest becomes a “resource” for those who desire to expand their political influence.4 When successful, the activist’s performance expands the scope of conflict beyond those who traditionally dominate policy arenas. By informing and exciting a sufficiently large and sympathetic audience, the activist’s position registers—ideally, resonates—in a freshly enlivened public debate which becomes increasingly difficult for elected leaders to ignore.5 Similar to traditional, politically weak protest groups, localities may want or need policy change, yet, as we have seen, they have limited means to influence higher authorities. Local leaders may be compelled to activism when local conditions appear urgent but higher government remedies are not forthcoming, or when higher policies or actions create “distant” conditions6 that are incompatible with local morals or values. Having exhausted conventional, diplomatic means of influence, or believing that such efforts will prove fruitless, activist leaders opt to pointedly defy higher authority. They may, for example, enact desired policy remedies that defy higher laws, or they may publically reprimand state or national leaders for unfavorable policies or laws, sometimes “challenging the authority of the judiciary” by proclaiming these policies unconstitutional.7 The end goal is not to enact a durable policy solution; rather, local activists leverage their official status and their access to the machinery of government in hopes of provoking a favorable response. This type of political behavior is often seen at the state level. Governor Chris Christie of New Jersey, for example, recently challenged federal law when he allowed sports betting in the state. This decision was in direct conflict with the federal Professional and Amateur Sports Protection Act, which limits sports betting to only four states, those that had legalized sports betting before the Act was passed in 1992. When Christie learned that the state’s 2012-2013 revenues would be $1.3 billion less than expected, he chose sports betting as a new revenue source stating, “If someone wants to stop us, let them try to stop us.” The pending court battle has the potential to change federal law by removing control of sports betting from federal hands. Alternatively, the federal government may be required to treat all states equally, thus bringing an end to the federal ban outright, or, conversely, forcing the federal government to apply the ban uniformly across all states.8

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The Continuum of Local Activism

Because all forms of local activism are not equally aggressive, some are less politically costly and, thus, more widely imitated. A recent study by Jessica Bulman-Pozen and Heather Gerken explains that defiant behaviors regularly employed by the states in the course of implementing federal mandates can be situated along an increasingly aggressive continuum. 9 The authors call the progressively aggressive acts of state defiance “uncooperative federalism.” Similarly, progressively aggressive defiance is found in local activism. I borrow Bulman-Pozen and Gerken’s continuum, but heavily modify the original to reflect the unique circumstances and range of behaviors specific to local activism.10 To explain, Bulman-Pozen and Gerken’s uncooperative federalism involves three levels of defiance—again, each occurring within the context of state implementation of federal policy. The authors write: Much of uncooperative federalism takes place in the interstices of federal mandates. Sometimes it is licensed: Congress explicitly contemplates that states will deviate from federal norms in implementing federal policy, but states take that invitation in a direction the federal government may not anticipate. Interstitial dissent can also take place in a regulatory gap, when the federal government does not contemplate state variation but states have sufficient discretion that they find ways to contest federal policy. The strongest form of uncooperative federalism involves civil disobedience: states may simply refuse to comply with the national program or otherwise obstruct it.11

The states, as federal policy implementers, enjoy “insider” status. The power derived from that status is fortified by constitutional protections, the preferences and demands of their own constituencies, and their access to “a separate power base that possesses significant resources, stability, and stature.”12 With little fear of a punitive federal or court response, uncooperative federalism may reasonably be viewed as a tool of state-federal negotiation, a form of diplomacy, rather than activism. Local activism, on the other hand, typically occurs when localities have no formal power to act. Thus, in contrast to the “insider” strategies of uncooperative federalism, local activists often must employ “outsider” strategies—protest-type behaviors—in hopes of gaining entry into policy arenas where they have no formal role or authority. These strategic behaviors progress from Reprimand to Active Resistance to Rebellion to Defiance. Note that these categories do not present

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mutually exclusive behaviors; in several instances of local activism two or more behaviors are present. A short explanation of each type of behavior is offered below. Reprimand

Local activism as reprimand occurs when local governments issue formal statements of dissent, indicating “restrained disagreement.”13 Reprimand is the most common form of local activism, and it often involves proclamations or resolutions in opposition to some higher law, policy position, or official action. I call these behaviors reprimand because the leaders who engage in them publicly denounce state or federal law, often demanding that the offending government mend its ways. What makes this type of activism relatively mild in aggression is its lack of enforceable directives. For example, nearly 200 resolutions were passed in opposition to preemptive war in Iraq, and more than 100 have been passed since invasion. These localities declared themselves to be “cities for peace” urging the war’s end; however, because localities have no access to the tools and decisions of war, assignment of local penalties is not possible, thus the local activism is purely symbolic. Active Resistance

Active resistance is a stronger form of activism involving enforceable directives. These include, for instance, executive orders, resolutions, or ordinances that require city employees and officials to refuse participation with the enforcement of higher policy on pain of some type of penalty. So, for example, while more than 400 local governments reprimanded the national government for the rights violations that are embedded within the USA PATRIOT Act (Patriot Act), at least another eight opted for stronger action—active resistance—passing ordinances to criminalize the local enforcement of certain parts of the Act. Arcata, California, was the first to do so in 2003. Local officials who violate Arcata’s law are subject to a $57 fine—clearly a symbolic penalty, but a penalty nonetheless. The ordinance was passed by a 4-1 vote of Arcata’s council (the holdout agreed in principle, but not approach); each council member knew the law would likely face legal challenge. The city manager said that the town welcomed the chance to propel the Patriot Act into court, adding that their law was “probably illegal, if you accept the Patriot Act as legal.”14 The ordinance, however, has not been challenged.

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Arcata residents successfully picked a fight five years later with an unrelated act of resistance. Voters in Arcata and a nearby town, Eureka, passed ordinances banning the U.S. military from recruiting minors within their jurisdictions. The Arcata ordinance was initiated by a councilman who overheard a National Guard recruiter giving the “hard sell” to three high school girls.15 He introduced the ordinance and voters approved the ballot measure. Both localities were quickly brought to court for “attempting to interfere with the government’s ability to raise an army and protect the country. The [Department of Justice]…said the ordinances are believed to be they only ones in the country with such blanket restrictions.”16 A lower court enjoined the ordinances’ enforcement citing their intent to “subject the conduct of the federal government directly to local control,” a violation of intergovernmental immunity. Arcata appealed and in December 2010 the Ninth Circuit affirmed the lower court’s decision, writing, “The ordinances do not merely regulate the federal government incidentally; rather, they are expressly intended to do so.”17 Rebellion

Local activism’s rebellion resembles the “interstitial” defiance that Bulman-Pozen and Gerken describe, as rebellion involves local policymaking in the “gray areas” of higher law. In most cases, these gray areas are authority gaps left in state or federal law wherein local activity was not anticipated, and so it is not expressly preempted. Rebellion occurs when localities use these gaps to enact policies that contradict or otherwise undermine state or federal authority or legislative intent. Assigning local actions to this category of behavior is tricky; local leaders often act in the gray areas of higher law believing, for instance, that their authority to undertake a particular action is elsewhere implied. In addition, local activists may simply claim that they believed they had the authority to act as a strategy to deflect resultant economic or political costs. Key to identifying rebellion is that activist regulations are clearly at cross-purposes with the intent of higher policy. In addition, it is not uncommon for local rebellious activists to confirm their activism—sometimes contradicting their claims of innocent policymaking—with public statements exposing their activist behavior. Hazleton, Pennsylvania’s anti-immigrant ordinances of 2006 are described as examples of rebellion in Chapter Seven.

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Defiance

At the far end of the continuum of local activism is defiance. These are positive acts of aggression akin to Bulman-Pozen and Gerken’s category, civil disobedience. Like uncooperative federalism, defiance may involve the refusal to cooperate with state or federal requirements, mandates, laws, regulations, and so forth. More frequently, however, this type of local activism manifests in ordinances or executive orders that purposefully, openly, violate state or federal law. A recent case of defiance involves Philadelphia’s gun control ordinances of 2008. Less than four months into the year, Philadelphia had already suffered more than 100 homicides, most by firearm. The city had seen 392 homicides in 2007 and 406 in 2006; citizens and pressure groups demanded relief.18 Mayor Michael Nutter and the city council responded with five ordinances that made possession of automatic weapons illegal; limited gun purchases to one per person, per month; mandated that owners of lost or stolen guns report the loss within 24 hours; permitted the removal of firearms from persons likely to harm themselves or others; and banned persons with orders of protection against them from owning guns. This was defiant activism because Pennsylvania’s Supreme Court had affirmed the state’s sole authority to regulate firearms in 1996, finding that the legislature had “denied all municipalities the power to regulate the ownership…transfer or possession of firearms,” a preemption that applied to all state jurisdictions.19 The National Rifle Association quickly filed suit on behalf of two local gun store owners. The lawsuit was no surprise to city leaders. It was Mayor Nutter’s one-hundredth day in office and, in his words, “it was one of the proudest moments of my career.”20 Likening Philadelphia’s activism to “the 1960s, when Martin Luther King, Jr. engaged in civic action,” Mayor Nutter signed his city’s ordinances into law less than two weeks after a much supported handgun control bill was defeated in Pennsylvania’s House, 75-122. Gun control advocates, including Mayor Nutter and Philadelphia’s city council, and “a growing coalition of law enforcement and mayors from around the state…” chided the legislature for its inaction.21 Indeed, Philadelphia’s council claimed that the legislature had created “a state of danger…by their continued refusal to pass measures sought by gun control advocates.”22 What about possible harms to their relationship with the state? Mayor Nutter said, “We are always concerned with a negative reaction from the state, but we believed we were morally and legally right. We might face action from the state. But whether they take action or not, they know that we are serious and sincere about the issue.”23 Despite legal

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challenge, the city’s activism was quickly imitated. In April 2010, the mayor claimed that “twenty-two local governments in Pennsylvania have passed (local gun laws) and we’ll keep going until we’ve covered the state.”24 By October 2010, over forty Pennsylvania municipalities had passed lost or stolen gun laws or resolutions. Policy Innovation and Diffusion

Often important, but not always necessary, to the success of local activism is its replication among jurisdictions. The more widespread the diffusion, the more salient the local complaint becomes. Policy diffusion first appeared in the literature in the 1960s25 and has recently enjoyed new interest.26 A number of studies have focused on the horizontal diffusion of policies, from locality-to-locality27 or from state-to-state,28 as well as the factors that facilitate diffusion29 and the evolution of policies as they diffuse.30 Researchers have also studied vertical diffusion, particularly the diffusion of policies from the federal government to the states31 and from the states to the federal government.32 Evidence of state influence on national policymaking is mixed. Among others, a recent study, for example, finds little evidence that the national government “learns” from its states,33 while other studies have found a good deal of support for state-to-national policy diffusion.34 Perhaps the divergent findings are explained by the differences in the policy areas being studied. Perhaps the salience of a particular policy issue makes a difference in national response. The bottom-up diffusion of local policy activism to state and federal governments is an emerging area of study. Recent scholarship, however, found that local activism in protest of the Patriot Act may have stimulated like policy adoption at the state level.35 Using event history analysis, the author evaluates the so-called local Bill of Rights movement and finds that significant predictor variables included legislative professionalism (weakly) and (more strongly) the number of localities within a state that participated in the activist movement. In this study, breadth of policy diffusion on the local level appeared to encourage state legislatures to consider like policies. This suggests that local activism does not go without notice; indeed, as more localities join in, it appears that the states may become more likely to respond to local activism, at least as it involves federal policy.36 That states learn from their local laboratories is documented in the literature. Studies on the diffusion of non-activist policies from local governments to states, called “bottom up”37 policy diffusion, are few, but those that exist suggest that states can and do learn from their local

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laboratories, adopting policies that have proven beneficial or politically acceptable at the local level. For example, Michael Mintrom found that local experiments in school choice “served as catalysts for the rise and spread of school choice as a policy innovation” at the state-level.38 Additionally, Charles Shipan and Craig Volden found that local antismoking policies paved the way for state-level reforms.39 This type of local-to-state policy diffusion appears most likely to occur in states that have professional legislatures and strong state-level interest group activity.40 It may be that local-to-local diffusion is helped by local professionalism and interest group activity, as well. Indeed, according to Karen Dolan at the Institute for Policy Studies, the interplay between concerned citizens and local politicians is evident. She estimates that 65 to 70 percent of active localities participating in the Cities for Peace movement (a local movement opposing military activity in Iraq) involved citizens or citizen groups that were instrumental in getting local officials to act.41 While official support is necessary for local activism, it appears that, like at the state level, local politicians often need concerned groups to present important issues and to raise support for policy innovations. Local-to-local diffusion is a common feature of local activism. The more widespread the diffusion, the more focused the media’s attention becomes. Intense media coverage ultimately pressures state and federal leaders to respond, either in support of, or in defense against, the diffusive movement. Thus, original acts of defiance appear, in these cases, to “snowball,” gaining momentum as diffusion spreads.42 The cases explored in subsequent chapters present local-to-local diffusion as important to the visibility and strategic impact of local activism. Where single acts of defiance may focus public attention under the right circumstances, the more likely outcome of single, non-replicated activism is obscurity. Activism’s replication helps to overcome barriers to visibility and impact. Replication signals to the wider public that multiple localities not only share concerns, but that they are passionate enough about those concerns to directly upset the status quo. Motivation for Activism

“In any given instance of policy change, it is usually possible to locate an individual or a small team that appears to have been a driving force for action.”43 These actors are often called policy entrepreneurs. Entrepreneurs “change the direction and flow of politics”44 by being “alert” to “disequilibrium,” perhaps intentionally created, so that they

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can “try to take advantage of discovered or newly created possibilities in order to earn entrepreneurial profits.”45 Local activists share many of the same qualities as policy entrepreneurs, and may be motivated by similar desires and needs. Like entrepreneurs, local activists are innovators, opportunists, and risk takers. They are willing to disrupt the status quo, set new agendas, and chance failure. But why do they do it? Motivations for state-level activism have been studied, offering potential insight. For example, Dale Krane writes that state leaders engage in policy activism to 1) “fill a policy void left by federal inaction or refusal to act,” 2) “adopt policy positions that correct or modify state perceived defects in federal policy,” 3) “communicate or signal issues or problems to the federal government,” or to 4) “follow (or oppose) a policy adopted by another state.”46 Unlike local activism, state-level activism, as previously discussed, often results in durable policy solutions. The constitutional protections provided to states may allow their activism to withstand legal challenge. In addition, state activism may simply be tolerated by the federal government because of their importance to federal program implementation.47 While local activism is more protest than pragmatism, the literature on policy entrepreneurs, the motivations for state activism, and the research associated with the cases supporting this work suggest likely motives for local activism: The activist local leader may desire to 1) promote local needs or preferences; 2) act on a moral imperative; 3) further his or her career; or 4) elevate the visibility of the jurisdiction in order to safeguard current economic relationships or to promote new ones. These are discussed in the following sections. To Promote Local Needs or Preferences/ To Act on Moral Imperatives

Without adequate capacity and authority to address pressing local conditions, urgency for action mounts. The locality approaching crisis may behave in ways that reflect this urgency. Crisis may be based on pressing local conditions, or on local values that are at odds with some external policy or circumstance. For example, recent calls for “food sovereignty” have led eleven towns in five states to pass ordinances and resolutions to free local food sales and processing from state and federal safety regulations. Sedgwick, Maine, the first to act, went so far as to proclaim it “unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.” Material crisis is difficult to demonstrate in this case, although arguments of health and occupational harms are certainly

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plausible; rather, moral crisis based on higher law and “human dignity” is the foundation for the city’s “Local Food and Community SelfGovernance Ordinance.”48 Urgency for action escalated when, in December 2010, the U.S. Senate passed the Food Safety and Modernization Act. The bill, returned to the House of Representatives as H.R. 2751,49 was referred to by one commentator as “the Patriot Act of farming”–an act that would “effectively destroy many small, local organic farms by suffocating them under a new regulatory burden…”50 This “betrayal of food freedom” created a crisis situation that led concerned localities to respond.51 Localities in crisis may be more likely to engage in activism. Consider Figure 5.1. With urgency, but low levels of local capacity and/or authority, local leaders are pushed into a state of crisis causing some local leaders to consider “solutions” that they might not have otherwise. As depicted in Figure 5.1, urgency converts to opportunity when local leaders possess the capacity and authority to cope with local demands and changing circumstances. The state of opportunity is less likely to provoke activism than crisis as local leaders may have access to “insider” tools and/or sufficient resources to meet local demands. Sufficient capacity and authority to respond to local issues, then, may be the key to avoiding a great part of local activism, should one be inclined to prevent it.

Urgency

Figure 5.1: Local Capacity/Urgency Model

Crisis

Opportunity

Stasis

Choice

Capacity and/or Authority

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As to the other two status categories, stasis implies low demands and low capacity and/or authority. Perhaps a smaller town with an aging, yet unconcerned, population serves to demonstrate. A locality may remain in stasis until some changing condition requires a response— such as a sudden expansion of nearby employment opportunities that will draw new residents to the area. Abrupt changes—perhaps a natural disaster—may, of course, propel a static locality into a state of crisis. The remaining category, choice, is interesting in that the local population has, for a time, the ability to maintain a preferred status quo, or it may opt to challenge itself by, for instance, actively seeking new growth opportunities. Of course, crisis and stasis are also possibilities for these jurisdictions, but choice localities have the authority and capacity to cope with a wide range of changing conditions for an extended period. Consider the nation’s low-service, low-tax—yet property rich—suburban cities. These cities often resist growth and change out of fear that growth will result in increased taxes or alterations to the local lifestyle. The goal is to maintain the status quo and choice jurisdictions can afford to erect the necessary barriers to achieve that goal—at least for a time. Interestingly, the cases included in this research suggest that local crisis may sometimes be real—as it is with rising gun-related death rates or a faltering local economy—or it may be that local leaders sometimes employ the rhetoric of crisis to justify their activism. In some cases, the end goal appears not only to be to engage higher governments for policy change, but also to bring attention to the locality or to the local leader. Crises, in other words, can be real or not, but in either case the language of crisis has political value. To Further Personal Careers

Although activist leaders risk their careers by defying higher law, activism also has the opposite potential—to advance elected leaders’ status and careers. Consider, for instance, that most local activists proclaim themselves to be defenders of the public interest—protectors of the rights of a particular group, the well-being of their residents, or conscientious objectors to some national or international injustice. Whether intentionally pursued or not, most politicians are happy to accept the benefits of the public hero; several have leveraged their newfound popularity to much higher offices. For example, regarding the former mayor of San Francisco, “Gavin Newsom’s prominence and stature have increased since the [same-sex] marriages in San Francisco. Although his decision vaulted him into the national spotlight, drawing

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much negative attention, the popularity of the issue within San Francisco helped Newsom solidify his political position within the city after winning a hotly contested election.”52 Parlaying his popularity, Newsom competed for the position of Lieutenant Governor of California four years after San Francisco’s activism and won, taking office in January 2011. Local anti-immigrant policy activist, Louis Barletta, was catapulted from mayor of Hazleton, Pennsylvania, to Congress by trading on his popularity with conservatives. He began his first term as Representative for Pennsylvania’s 11th district in 2011. For local leaders with higher aspirations, any path to greater visibility is better than no path at all. Consider the traditional career path of the mayor: …[T]he mayoralty in the United States tends not be a stepping stone to higher political visibility, state or national executive authority, or even a position in the national legislature. Very few of those who have served in the U.S. House of Representatives or the U.S. Senate have ever had experience as a local elected official. Only three Presidents began their careers as mayors, and few who obtain significant posts in the federal administration did so because they performed admirably as mayors.53

With few exceptions, the local office means obscurity. Recent changes, however, such as the strong mayor movement, the emergence of the “messiah mayors” of the 1970s and 1980s, and the recent trend toward high-profile, charismatic mayors, such as Cory Booker, Michael Bloomberg, and Michael Nutter, may signal a change in popular perception of the office and in the self-perception of local leaders. Perhaps local leaders have learned the political value of increasing their visibility. Safeguarding Economic Wellbeing

Depending upon circumstances, economic benefits to the activist jurisdiction may be significant. Heidi Hobbs reports that city activism in matters of foreign policy during the 1980s can be attributed in part to the international economic ties that many cities were cultivating and desperately needed.54 By reprimanding the federal government and engaging in activities such as divestment of local funds from South Africa, activist localities distinguished themselves in the international community as distant from central policy and actions, perhaps helping them to safeguard their existing and potential foreign economic relationships. The economic forces that encouraged local activism in the

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1980s are arguably more pressing today. Fending for themselves with no power to control the inflow or outflow of businesses and residents, local leaders understand that the maintenance of international ties is more important than ever. Certainly, capital mobility is nothing new. The nature of the competition, however, has recently changed.55 Over the past several decades, winning and retaining residents and capital investment has come to require more than competitive business inducements and basic public services. As discussed in Chapter Four, some local governments are likely to benefit from appearing tolerant and progressive, qualities that are attractive to the workforce of the new economy. A public demonstration of tolerance—such as the extension of sanctuary to undocumented immigrants—may not be necessary to attract this workforce, but it may not hurt. A city that is trying to gain competitive footing may find such policies and the visibility afforded by them beneficial. In another scenario, if other localities are showing support for same-sex couples by creating a local domestic partner registry (not activism), or by recognizing same-sex marriage despite a state ban (activism), localities desiring to project tolerance may feel pressured to follow suit and some may actually lose popular support if they do not. Granted, not all activist local governments are following in the new, progressive trend. Others are taking another approach. For example, local ordinances that attempt to control—or scare away—undocumented immigrants hardly project tolerance, but may attract a certain type of resident. While the great majority of local activism promotes a liberal agenda, conservative activism occurs. One might argue that conservative activist localities have so far failed to find a niche within the new economy. Or perhaps, and more likely, these localities wish to attract and/or retain residents who are less tolerant of diversity and change. These localities may attempt to recover or maintain their economic health by attempting to rid themselves of “high-cost” residents in order to retain those of “high-value.”56 While this protectionist strategy may succeed in the short term, it could be at cross-purposes with maintaining the local economic well-being in the long term. Local activism that targets undocumented immigrants or shows intolerance for alternative lifestyles may very well hinder a city’s future access to the “flows” of global economic competition.57

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Mitigating Factors

On its own, crisis is not a reliable predictor of local activism. Many more localities address urgent demands with diplomatic tools than with activism. But it seems reasonable that the likelihood of activism increases as local access to, and influence on, higher government leaders declines. Closed or poor lines of communication, perceived mistreatment by state or federal governments, or a history of failed negotiation may cause local leaders to opt for an aggressive approach to policy change. Conversely, crisis can foster cooperation when lines of communication are open; consider the early years of the New Deal programs. Today, however, after decades of perceived neglect and abuse, some local leaders may believe that the costs of activism have declined relative to its potential benefits. Personal values may play a mitigating role. Some local leaders will be loath to act extra-legally or to challenge higher authority, while others may see activism as an opportunity to positively engage the larger system. How a leader interprets the charge of his office and the tools that accompany it matters. Logically, some leaders, for better or worse, will be less likely to act outside of his or her prescribed official bounds. On the other hand, others may interpret their obligation as to include the protection of their local population, or overarching constitutional or moral norms. These leaders may see the powers of elected office as tools by which the greater good can be furthered in higher arenas. Fear of local backlash may factor into decisions regarding activism, as well. Local leaders are unlikely to act if they fear that their citizens will not support them or tolerate the costs that may accrue because of activism. In addition to personal risks, including possible reputational damage and even electoral defeat, activist leaders understand that they expose themselves and their jurisdictions to the loss of local autonomy and discretion; damaged intergovernmental relationships; and lost access to state support and revenues, and perhaps to their own revenues, as well. Localities may be made to bear the cost of litigation. Courts that determine a locality has acted beyond its authority can assign legal costs to the jurisdiction, usually at the request of municipal insurers. An additional burden to local revenues may occur with lost population and businesses that perceive taxpayer dollars have been wasted or that leave in opposition to the local government’s intolerance, such as when local activism targets specific groups of people.58 Any of these hazards may cause a local leader to refrain from activism.

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Declining Risk

The costs associated with these risks, however, may have declined in recent decades. For example, the erosion of the intergovernmental partnership has downgraded the threat of damaged intergovernmental relations or lost financial aid. Whatever constraining effect economic dependence once had upon local behavior, it has gone the way of the federal urban program. “Federal funds as a percentage of all municipal revenues rose to a high of about 17% in 1978 and declined steadily to well under 5% today [2005]. During the 20-year period from 1977 to 1997, the comparable state government percentage of municipal revenues stayed roughly steady at about 20%. Thus, cities absorbed the entire drop in federal aid by increasing revenue from their own local sources.”59 Recall that this task was complicated by state- and citizenled efforts to limit local taxes and expenditures (TELs). For localities that have managed to stay afloat, and others that have prospered, the threat of damaged relationships or lost access to intergovernmental revenue has lost some of its bite. While the assignment of activism’s legal costs to local taxpayers remains a serious risk, this eventuality may not have a direct effect on local leaders’ professional goals. Regarding “anti-immigrant ordinances,” the people of Hazleton, PA, were made to assume $2.4 million in litigation costs in 2009; Farmers Branch, TX, incurred nearly $3 million in legal fees in 2009; Riverside, NJ, spent nearly $90,000 in one year; and Escondido, CA, spent nearly $300,000 in 2007.60 In addition to litigation, which has cost some localities in excess of $3 million, the American Civil Liberties Union reports that others have lost businesses, further burdening the local economy; communities have been divided; and a number of activist leaders have lost their jobs as a consequence of their activism’s negative effects.61 While local taxpayers absorb these costs, and they certainly wish it were not so, it may be that the political risk to local leaders’ careers—which, logically, should be high—has declined in recent years along with popular trust in higher governments. Able to play the “good guy,” some local leaders might feel freedom, or even pressure, to defy higher authority, and they may consider the possibility of hefty legal fees bearable in anticipation reaping greater benefits to their jurisdiction or themselves. Local activism may be enjoying the appearance of success, as well, helping activist leaders to justify the risks of activism with the possibility of greater rewards. Some believe that the activism of the 1980s was quite successful in achieving higher government policy change while also bringing international visibility to activist localities.

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For example, local governments that reprimanded the federal government for its foreign policy in the 1980s are credited with playing an “instrumental role…in pushing the Reagan administration to begin the Strategic Arms Reduction Treaty negotiations, to abandon most of its nuclear-war civil defense planning, to impose sanctions on South Africa, and to stop sending military aid to the contras.”62 In addition to favorable policy change, local leaders have enjoyed elevated political clout, as mentioned earlier, as well as the political and economic benefits of strengthened, or at least not broken, economic ties. Reinforcing notions of declining risk is the increased importance of localities to the intergovernmental system. As local governments do more for state and national governments, they gain access to “the power of the servant” due to higher government dependence upon them.63 Certainly, the legal status of local governments has not changed—they remain “no better off than conquered provinces.”64 But higher governments need local cooperation to accomplish their policy goals and to support higher laws and policies. Case Overview

Data collection of local activism is greatly complicated by the lack of a central repository for local policies. Each locality keeps its own records, and these records are not always available online. Thus, case identification for this study began with a series of keyword searches in the full text of “major newspapers” held by LexisNexis Academic, geographically limited to the United States for the years 1900-2010. Early searches involved keyword phrases such as “local law preempted,” “city violates law,” “locality challenges state/national government/law,” and “locality/city/local law/ordinance defies state/national government/law.” These phrases evolved as new terms suggested themselves. In this way, and by pursuing related cases when mentioned in news items, I attempted to identify as many cases of activism as possible. With this foundation, I sought additional information from policy reports offered by the National Conference of State Legislatures and special interest groups, such as the Human Rights Campaign, the Bill of Rights Defense Committee, as well as a number of academic studies. Ultimately, information from non-newspaper sources was most helpful to building out my database. In total, these sources allowed me to identify and catalogue cases of local activism, the activist locality, date(s) of activism, names and/or official titles of individual activists (when available), known interest group involvement, and known state or federal response or related court activity, along with

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various demographic variables collected from the 1990, 2000, and 2010 United States Census, and five year estimates of the American Community Survey. The resulting collection of cases reveal the range of policy areas that have been targeted for activism, activism’s regular diffusion among localities, and the nature and common outcomes of higher government and court responses. Additionally, it is noteworthy that of the cases of activism that were found, almost all occurred since 1980. One possible explanation for this is that the incidence of local activism has burgeoned over the past three decades. On the other hand, perhaps local activism has only recently been deemed news- and research-worthy, the lack of coverage thus obscuring the prevalence of earlier cases. Also noteworthy is that most local activism has promoted a decidedly liberal position, perhaps indicating local pushback against the recent policy conservatism of higher governments. Perhaps, like the states, localities are acting to promote the policies that higher leaders have proven reluctant or unable to generate. Where conservatism appears in local activism, it involves resistance to same-sex rights or undocumented immigrants, issues that have also been targeted for liberal activism, perhaps suggesting a collective frustration at the local level with higher government inaction. Surveying Local Activism

My case search revealed ten issue areas targeted for activism that can be grouped into the three broad policy areas mentioned above, plus a few exceptions. These issue areas include supportive and unsupportive policies pertaining to undocumented immigrants; resistance to the Patriot Act; supportive and unsupportive policies related to LGBT rights; the Cities for Peace movement of the 1980s; the nuclear test ban and nuclear free movements of the 1980s; local divestment from South Africa and related businesses; and the emergent food sovereignty movement. In total, 1443 activist events occurred across all 50 states and Washington, D.C. since 1980. These events occurred in 892 cities and 70 counties. This is a conservative number as it is unlikely that my search captured all cases of local activism. Cases that could not be confirmed were excluded from consideration. Cases that resulted in unsuccessful attempts at local adoption were not included either; indeed, few are known as failed attempts are inherently less newsworthy than successes. In addition, to my knowledge only one group, the Bill of Rights Defense Committee, maintains information on ongoing and

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unsuccessful case attempts—in this case pertaining to local attempts to pass legislation in resistance to the Patriot Act. Table 5.1: Population Distribution of All Localities Engaging in Activism

Size of Municipalities Less than 25,000 25,000 to 49,999 50,000 to 99,999 100,000 to 249,999 250,000 to 499,999 500,000 to 1 million More than 1 million N of cases

Size and Percent of all 1 Incorporated Places 2182 (93%) 681 (7.7%) 421 (2.2%) 189 (1%) 36 (.002%) 24 (.001%) 9 (>.001%) 19,475 (100%)

Size and Percent of Places Engaging in 2 Activism 509 (58%) 120 (13.7%) 112 (12.8%) 76 (8.7%) 34 (3.9%) 19 (2%) 7 (.001%) 877 (100%)

1

Source: U.S. Census Bureau, 1990 Census of Population and Housing, Population and Housing Unit Counts; and “SUB-EST2006: Subcounty Population Estimates, April 1, 2000 to July 1, 2006’’ 2 Excluding activist counties.

As demonstrated in Table 5.1, compared to all incorporated places in the United States, it is clear that the distribution of activist localities leans heavily toward those with populations less than 100,000. Compared to all incorporated places in the U.S., activism is underrepresented in localities with populations less than 25,000, but is overrepresented in every other category. We might expect local activism to be overrepresented in larger cities. Greater diversity and professional leadership might provide the capacity to follow the goings-on of other localities, and to act on social and foreign policy issues. In fact, cities with populations of 100,000 or fewer comprise 85 percent of the local activist population. Fifty-eight percent of activist localities had fewer than 25,000 citizens. The

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remaining distribution was 27 percent from 25,000 to 99,000; 8.7 percent 100,000 to 499,000; 3.9 percent 250,000 to 499,000; and 2 percent 500,000 to 1,000,000. Activism appears to have a strong regional aspect. Of the 1443 activist events included in this study, most activity occurred in Region 1, the Northeast, and Region 4, the West, with 621 and 425 cases of activism respectively. These two regions account for 72 percent of the activist activity discussed in this book. Activism occurred in 431 places in Region 1 and 268 places in Region 4. Region 2 hosted 224 cases of activism in 153 places, and Region 3 had 173 cases of activism in 119 places. Figure 5.2 offers a visual representation of this geographic distribution. Also, see Table 5.2 for tabled information regarding areas of policy activism by state. Figure 5.2: Geographic Distribution of Local Activism

Because the divisions within census regions vary in political, cultural, and demographic composition, closer geographical inspection is warranted. Region 1 contains divisions 1 and 2. Division 1 includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Two hundred and eighty-six localities in these states are responsible for 29 percent of local activism. Division 2 includes New Jersey, New York, and Pennsylvania. 14 percent of local activism occurred in these states in 145 localities.

Table 5.2 Activist Events by State Number Region events/state Connecticut 1 31 Maine 1 19 Massachusetts 1 266 New Hampshire 1 8 New Jersey 1 96 New York 1 70 Pennsylvania 1 32 Rhode Island 1 19 Vermont 1 74 Illinois 2 34 Indiana 2 4 Iowa 2 6 Kansas 2 11 Michigan 2 40 Minnesota 2 18 Missouri 2 17 Nebraska 2 2 North Dakota 2 1 Ohio 2 32 South Dakota 2 2 Wisconsin 2 62 Alabama 3 2 Arkansas 3 7 Delaware 3 5 District of 3 5 Columbia

Patriot Act X X X X X X X X X X X X X X X X X

AntiImmigrant

X

X

X

X

X X

X

ProImmigrant X X X

X

X X X

X

X X

AntiGBLT

X

ProGBLT X X

Protest Iraq X X X

X X X

X X X

X

X X X

X X

Test Ban X

Divestment

X X X X X

X

X

X X X

X X

X X X X X X

X X X X X X X X X

X X X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X X X

X

X

X X

X X

! ! ! !

Food Sovereignty

X

X X X

X

Sanctuary

X X

X X X X

Nuclear Free X

X

X

Florida Georgia Kentucky Louisiana Maryland Mississippi North Carolina Oklahoma South Carolina Tennessee Texas Virginia West Virginia Alaska Arizona California Colorado Hawaii Montana Idaho New Mexico Nevada Oregon Utah Washington Wyoming

3 3 3 3 3 3 3 3 3 3 3 3 3 9 4 4 4 4 4 4 4 4 4 4 4 4

26 5 2 2 23 3 27 5 3 1 28 17 3 1 4 199 43 4 13 6 20 5 56 8 40 2

X X X X X X X X X X X X X X X X X X X X X X X

X

X

X

X

X

X X

X

X X X X X X X

X X

X

X X

X

X

X X

X

X

X X

X X

X X

X X X

X X

X

X X X X X X X X X X X X

X X X

X X

X X

X X

X X X X X X

X X

X

X

X

X

X

X X X

X

X

X

X

X X X

X

X

X

X X

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Table 5.3: Localities and Total Events by Census Division

Localities New England (1) Middle Atlantic (2) East N. Central (3) West N. Central (4) South Atlantic (5) East S. Central (6) West S. Central (7) Mountain (8) Pacific (9) Totals

286 145 127 26 75 12 32 81 187 962

Number Events 421 200 179 45 115 12 46 118 307 1443

Percent of Total Events 29 14 12 3 8 >1 3 8 21 100

Region 2 is home to divisions 3 and 4. Division 3 includes Indiana, Illinois, Michigan, Ohio, and Wisconsin. One hundred and twenty-seven localities in Division 3 are responsible for 12 percent of local activism. Division 4 is home to Iowa, Kansas, Minnesota, Missouri, Nebraska, and North and South Dakota. Local activism in these states accounts for about three percent of the total in 26 places. Region 3 has three divisions. Division 5 contains Delaware, the District of Columbia, Florida, Georgia, Maryland, North and South Carolina, Virginia, and West Virginia. Seventy-five places in these states are responsible for about eight percent of local activism. Division 6 includes Alabama, Kentucky, Mississippi, and Tennessee, home to ten cities and two counties responsible for only 12 cases of local activism, less than one percent of the total. Division 7 includes Arkansas, Louisiana, Oklahoma, and Texas. These states participated in 46 activist events, accounting for about three percent of the total in 32 places. Region 4 is home to Divisions 8 and 9. Division 8 contains Arizona, Colorado, Idaho, New Mexico, Montana, Utah, Nevada, and Wyoming. Eighty-one localities in these states are responsible for about eight percent of local activism. Division 9 includes Alaska, California, Hawaii, Oregon, and Washington. One hundred and eighty-seven localities in these states performed 21 percent of local activism included in this study. The most active states in Region 1 were Massachusetts (267 events), New Jersey (95 events), Vermont (74 events) and New York (71

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events). Wisconsin was most active in Region 2 (63 events). No states stood out as especially active in Region 3, although Florida, North Carolina, Maryland, and Texas each had over 25 cases of activism. California (303 events) and Oregon (58 events) were the most active states in Region 4. Table 5.4 displays the nation’s most activist cities, defined as those that have engaged in four or more events since 1980. Within Census Divisions, the states most responsible for activism were Massachusetts and California. The divisions least active were the South Atlantic and East South Central. Maryland, Florida, and North Carolina were relatively active, however, with about 25 activist events each. These states are located in Division 5. As to targeted policy areas, protest against the Patriot Act was greatest with 390 cases of activism. The 1980s Nuclear Test Ban cities involved 156 cases, and the recent protest against military action in Iraq (Cities for Peace) has had 290 activist events. Pro-immigration ordinances and resolutions number 165. The Nuclear Free Movement of the 1980s saw 152 cases of activism, and the South Africa Divestment movement had 101 active cities. Twenty-six cities offered sanctuary to refugees in the 1980s.While 67 cities have sought to protect LGBT rights, 30 acted to restrict them. Finally, although pro-immigrant actions numbered 165, as mentioned above, anti-immigrant actions numbered 55. The geographical distribution of local activism according to policy area is offered in Table 5.5. The parentheses offer percentages representing the divisional share of total events which are indicated at the far right of the table. The percentages are rounded. Some prominent features include New England’s participation in protesting the war in Iraq and the Pacific division’s hefty anti-LGBT policies. Divisions 1, 2, 3 and 9 share most of the activity in the other policy areas while Divisions 4-8 are least active, with the exception of the South Atlantic’s contribution to the divestment movement. The literature on policy diffusion suggests that localities that are reformed, those that have a council-manager structure, are likely to “possess more expertise and to be more effective and efficient at passing and implementing legislation.”65 On the other hand, localities that are mayor-council in form tend to be “more overtly political. Along these lines, Clingermayer (1990) finds that the adoption of symbolic policies and credit-claiming is more common in municipalities with MayorCouncil government types.”66 I found that most activist local governments have a council-manager form of government (369), but that another 255 were mayor-council, and about 188 were New England

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towns. The distribution and percentages of activist locality by form of government are presented in Table 5.6. Table 5.4: Most Active Localities by Number of Events, 1980–2010 Four Events

Five Events

Six Events

Seven Events

Heath, MA Wendell, MA Ashfield, MA Shutesbury, MA Leverett, MA Provincetown, MA Greenfield, MA Amherst, MA Newton, MA Hartford, CT Rochester, NY Philadelphia, PA Boston, MA Camden, NJ East Lansing, MI Missoula, MT Evanston, IL Lansing, MI Ann Arbor, MI St. Louis, MO Detroit, MI Cleveland, OH Chapel Hill, NC Alexandria, VA Durham, NC Houston, TX West Hollywood, CA Olympia, WA Santa Fe, NM Santa Barbara, CA Tucson, AZ Portland, OR Denver, CO

Highland Park, NJ Somerville, MA New Haven, CT Jersey City, NJ Duluth, MN Washington, D.C. Baltimore, MD Austin, TX Richmond, CA Fort Collins, CO

Burlington, VT Cambridge, MA New York, NY Chicago, IL Takoma Park, MD Davis, CA Sacramento, CA San Jose, CA

Brookline, MA Madison, WI Minneapolis, MN Santa Cruz, CA Berkeley, CA Seattle, WA Los Angeles, CA

Eight Events Boulder, CO Oakland, CA

Table 5.5 Distribution of Activist Events by Census Division 1

2

3

New England

Middle Atlantic

East North Central

4 West North Central

5 South Atlantic

6 East South Central

7 West South Central

8

9

Mountain

Pacific

Anti-Immigrant

0

10 (25)

5 (13)

2 (3)

7 (16)

6 (3)

6 (16)

4 (6)

15 (19)

Pro-Immigrant

11 (7)

25 (15)

6 (4)

0 (0)

4 (6) 3 (1) 5 (4) 1 (1) 7 (7)

23 (13) 2 (7) 8 (12) 4 (1) 6 (4) 11 (7) 22 (22)

18 (12) 1 (3) 4 (6)

26 (16) 1 (3) 5 (8) 9 (3) 10 (6) 8 (5) 5 (5)

42 (26) 25 (83) 18 (27) 19 (7) 20 (13) 36 (23) 20 (20)

2 (8)

11 (42)

47 (13) 1 (9) 118 (8)

99 (26) 2 (18)

Anti-GLBT Pro-GLBT Protest Iraq

109

Nuclear Test Ban Nuclear Free Zones Divestment Sanctuary Patriot Act Food Sovereignty Division Totals

0

0

10 (15) 189 (65) 54 (34) 36 (25) 10 (10)

9 (13) 11 (4) 50 (32) 24 (16) 15 (15)

14 (9) 1 (3) 9 (13) 55 (19) 9 (6) 34 (22) 17 (17)

3 (12)

3 (12)

3 (12)

3 (12)

1 (4)

101 (25) 7 (64) 421 (29)

53 (14)

33 (9)

14 (4)

30 (8) 1 (9) 115 (8)

Percentages in parentheses.

0

0

0

0

200 (12)

179 (13)

45 (3)

0 0 0

0

1 (1) 1 (1)

1 (1) 1 (1) 5 (5)

0 0

0

3 (1)

10 (3)

0

0

12 (0)

46 (3)

307 (21)

Event Totals 55 165 30 67 290 156 152 101 26 390 11 1443

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Table 5.6: Activism by Form of Local Government

Mayor-council Council-manager Commission Town Other Total

Frequency 255 369 27 188 123 962

Percent 26.5 38.3 2.8 19.5 12.8 100

All in all, the landscape of activism is quite varied. While we will move more deeply into the data in the coming chapters, this overview is suggestive of some general characteristics: activism is not isolated to any one area, but is more likely in the Northeast and West. Some cities might be called “activist cities,” having engaged in activism more than once. The issues targeted for activism draw localities from several parts of the nation, rather than being confined to one area, although some areas are more active on particular issues than others. And while council-manager governments comprised the greatest percentage of our activist cities, mayor-council and town forms accounted for greater than 50 percent of the lot. The chapters to come focus on three policy areas—lesbian, gay, bisexual, and transgender rights (LGBT), immigrant treatment, and local foreign policy. Chapter Six addresses activism related to the lesbian, gay, bisexual, and transgender population. Generically, I will refer to these issues as LGBT rights. Although hundreds of localities have acted in this arena since the late 1970s, most of their actions have fallen within the parameters of local authority—for instance, local domestic partner registries or the addition of “sexual orientation” to nondiscrimination policies (in states that do not prohibit such actions). Other local actions qualify as activism. Since 1980, 22 cities and 8 counties have acted extra-legally in ways that are unsupportive of LGBT rights. Another 59 cities and 8 counties have been supportive of this population in their local activism. These events are discussed in Chapter Six with detailed location and population distribution information. Undocumented immigrants, and the immigrant population, generally, have been targeted for local activism. Activist localities are divided as either supportive or unsupportive of their immigrants, undocumented or otherwise. Since 1995, fifty-nine localities (58 cities, 1 county) have passed punitive ordinances, hoping to curb immigrant growth in their cities. By targeting undocumented immigrants, all

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immigrants are deterred to a degree. Another 152 cities and 10 counties have passed supportive ordinances, offering some level of relief or sanctuary to their immigrant population. This movement is differentiated from the 1980s sanctuary movement (see below), and further discussion is offered in Chapter Seven. In the 1980s, the foreign policy focus of local activism led 435 localities to engage in protesting one or more of four related, but distinct, policies. In short, there were 155 cases of activism against nuclear testing; 153 declarations of nuclear-free zones; 101 cases of divestment of local funds from investments in or related to South Africa; and 26 declarations of sanctuary for Central American refugees. The Cities for Peace movement reinvigorated “local foreign policy” between 2003 and (particularly) 2006; 288 localities across the nation passed resolutions protesting U.S. military engagement in Iraq. These issues and the local activism will be discussed at length in Chapter Eight.

Notes 1

Schattschneider, The Semi-Sovereign People. Lipsky, Protest in City Politics; McCarthy and Zald, “Resource Mobilization and Social Movements: A Partial Theory,” pp. 1212-1241. 3 Meyer, The Politics of Protest, pp. 11-12. 4 Ibid., pp. 10-11. 5 Schattschneider, The Semi-Sovereign People. 6 Rucht, “Distant issue movements in Germany,” in Globalizations and Social Movements, Guidry, Kennedy, and Zald, eds., pp. 76–105. 7 Schragger, “Can strong mayors empower weak cities?” p. 2542. 8 Staff, “Gambling man: Can New Jersey do what it wants?” p. 40. 9 Bulman-Pozen and Gerken, “Uncooperative Federalism,” pp. 1256-1310. 10 Riverstone-Newell, “Bottom-Up Activism.” 11 Bulman-Pozen and Gerken, “Uncooperative Federalism,” pp. 1271-72. 12 Ibid., p. 1271. 13 Ibid., p. 1271. 14 Fagan, “Town ordinance penalizes officials who cooperate with Patriot Act.” 15 Barbassa, “California towns challenge feds on military recruiting.” 16 Ibid. 17 U.S. v. City of Arcata. 18 Hurdle, “Philadelphia can’t set gun laws, court rules.” 19 Ortiz v. Commonwealth. 20 Nutter, Michael, Personal interview. 21 Hurdle, “Philadelphia can’t set gun laws, court rules.” 22 Ibid. 23 Nutter, Michael, Personal interview. 24 Ibid. 2

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25 Crain, “Fluoridation - Diffusion of an Innovation among Cities,” pp. 46776; Walker, “The Diffusion of Innovations among the American States,” pp. 880-99; Gray, “Innovation in the States: A Diffusion Study,” pp. 1174-85. 26 Shipan and Volden, “The Mechanisms of Policy Diffusion,” pp. 840-857. 27 Crain, “Fluoridation – Diffusion of an Innovation among Cities,” pp. 467-76; Godwin and Schroedel, “Policy Diffusion and Strategies for Promoting Policy Change,” pp. 760-76; Knoke, “The Spread of Municipal Reform: Temporal, Spatial, and Social Dynamics,” pp. 1314-39. 28 Berry and Berry, “State Lottery Adoptions as Policy Innovations,” pp. 395-415; Walker, “The Diffusion of Innovations among the American States,” pp. 880-99; Gray, “Innovation in the States,” pp. 1174-85; Case, Hines, and Rosen, “Budget Spillovers and Fiscal Policy Interdependence: Evidence from the States,” pp. 285-307, among others. 29 Balla, “Interstate Professional Associations and the Diffusion of Policy Innovations,” pp. 221-45; Mintrom, “Policy Entrepreneurs and the Diffusion of Innovation,” pp. 738-70; Skocpol, Abend-Wein, Howard, and Lehmann, “Women’s Associations and the Enactment of Mothers’ Pensions in the United States,” pp. 686-701. 30 Shipan and Volden, “Bottom-Up Federalism,” pp. 825-843. 31 Allen, Pettus, and Haider-Markel, “Making the National Local,” pp. 318344; Walker, “Problems in Research on Diffusion of Policy Innovations,” pp. 1186-91. 32 Boeckelman, “The Influence of States on Federal Policy Adoptions,” pp. 365-75; Mossberger, “State-Federal Diffusion and policy Learning,” pp. 31-50. 33 Lowery, Gray, and Baumgartner, “Policy Attention in State and Nation.” 34 Boeckelman, “The Influence of States on Federal Policy Adoptions”; Mossberger, “State-Federal Diffusion and Policy Learning.” 35 Riverstone-Newell, “The Diffusion of Local Bill of Rights Resolutions to the States.” 36 Ibid. 37 Shipan and Volden, “Bottom-Up Federalism.” 38 Mintrom, “The State-Local Nexus in Policy Innovation Diffusion,” p. 43. 39 Shipan and Volden, “Bottom-Up Federalism.” 40 Ibid., p. 827. 41 Email exchange on June 14, 2012. 42 Shipan and Volden, “Bottom-Up Federalism,” p. 827. 43 Mintrom and Norman, “Policy Entrepreneurship and Policy Change,” p. 651. 44 Schneider and Teske, “Toward a Theory of the Political Entrepreneur,” p. 737. 45 Ibid., pp. 737-738. 46 Krane, “The Middle Tier in American Federalism,” p. 462. 47 Bulman-Pozen and Gerken, “Uncooperative Federalism.” 48 Sustainable Cities Collective, “Maine Town Becomes First in US to Declare Food Sovereignty.” 49 FDA Food Safety Modernization Act. 50 Adams, “S 510 Fake Food Safety bill passed by Senate in late-night sneak attack on small farmers and food freedom.” 51 Ibid.

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52 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” pp. 227-228. 53 Schragger, “Can strong mayors empower weak cities?” p. 2542. 54 Hobbs, City Hall Goes Abroad. 55 Schragger, “Cities, Economic Development, and the Free Trade Constitution.” 56 Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” p. 505. 57 Sassen, Global Networks, Linked Cities. 58 ACLU: Immigrants’ Rights Project, “Anti-Immigrant Ordinances Have Real Economic and Political Costs for Cities that Enact Them.” 59 Barnes, “Beyond Federal Urban Policy,” p. 582. 60 ACLU: Immigrants’ Rights Project, “Anti-Immigrant Ordinances Have Real Economic and Political Costs for Cities that Enact Them.” 61 Ibid. 62 Shuman, “Dateline Main Street: Courts v. Local Foreign Policies.” 63 Bulman-Pozen and Gerken, “Uncooperative Federalism.” 64 Berman, Local Government and the States, p. 55. 65 Shipan and Volden, “The Mechanisms of Policy Diffusion,” p. 848. 66 Krause, “Policy Innovation, Intergovernmental Relations, and the Adoption of Climate Protection Initiatives by U.S. Cities,” p. 49.

6 Lesbian, Gay, Bisexual, and Transgender Rights Activism

Activist judges…have begun redefining marriage by court order, without regard for the will of the people and their elected representatives…Our nation must defend the sanctity of marriage. —President George W. Bush, 2004 State of the Union Address

Gavin Newsom had been the City and County of San Francisco’s mayor for less than one month when he defied California law by ordering the County Clerk, Nancy Alfaro, to “determine what changes should be made to the forms and documents used to apply for and issue marriage licenses in order to provide them on a non-discriminatory basis, without regard to gender or sexual orientation.”1 The former mayor claims that he was motivated by George W. Bush’s 2004 State of the Union promise to “defend the sanctity of marriage” with, if necessary, a constitutional ban. Chiding past leaders for “abdicating responsibility,”2 Newsom professed a legal and moral obligation to uphold the state’s constitution; according to him, California’s Family Code violated state and federal guarantees of equal protection by reserving marriage to heterosexual couples. His executive order was issued and, between February 12 and March 11, 2004, same-sex couples were allowed to marry for the first time in the nation’s history. Said Newsom: In a matter of days, we went from a few dozen couples getting married, to thousands of people descending on city hall. Lines were around the block. We had people from 46 states and eight countries. By the end of the month we’d married 4,036 couples. We unleashed this remarkable energy that spread around the world. You had the king of Cambodia watching CNN, and the next day he decided to change the law. You had Spain, a Roman Catholic country, change its laws. 3

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San Francisco’s activism quickly diffused. Within months, for example, Multnoma County, Oregon, issued over 3,000 marriage licenses to same-sex applicants, citing discrimination in the state’s constitution. Benton County, Oregon, refused to issue marriage licenses to anyone until questions of discrimination were answered. (While this action made a statement, this is, as I understand it, the proper local response to questions of constitutionality regarding state law.) In addition, “marriage licenses have also been granted to same-sex couples in…New Paltz, New York; Asbury Park, New Jersey; and Sandoval County, New Mexico.”4 Portland joined in on March 3, 2004, and in May 2004 Cape Cod, Massachusetts, defied state law when officials voted to allow out-of-state same-sex couples to wed. In each of these cases, local leaders were made to desist, but their symbolic action attracted media attention and contributed to a variety of both supportive and unsupportive gay rights and domestic partner protections at the state and local levels. Historical Background

The battle for same-sex rights is rooted in the post-World War II radical social environment. “…[R]apid social change, the weakening of traditional political loyalties, and heightened emphasis on personal autonomy conspired to intensify conflict over cultural values.”5 The fluidity of this environment permitted the nation’s gay population to develop group consciousness and to mobilize. By the late 1960s, groups throughout the nation’s largest cities called for “gay liberation.”6 The first of these groups’ efforts targeted sodomy laws, the diagnosis of homosexuality as a psychological disorder, and “protection from retaliation for being openly gay.”7 Later efforts targeted discriminatory public policies, including the ban on gays in the military. Still later, these groups fought for basic rights to employment benefits, child custody, adoption, and marriage. In the 1960s, police brutality, public scorn, and public policy backlash fueled the organization of the gay community into increasingly professional groups that used more conventional, diplomatic political tools to achieve change. These tactics worked, especially in communities with sizable gay presences. While national and state-level protections for same-sex relationships remained distant, save for a few progressive states, a number of local governments were persuaded that “discrimination based on sexual orientation in employment, housing, and other institutions” was, indeed, a violation of individual rights. These governments, numbering “several dozen” by the late 1970s,

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enacted policies to protect gay residents, despite the widespread hostility toward same-sex couples across the nation.8 Same-sex protections gained momentum at the local level throughout the 1980s and 1990s. Most sought to provide protection from discrimination, although a number of communities “passed resolutions expressing hostility toward gays and gay rights generally.”9 Focusing on anti-discrimination policies, Kenneth Wald et al. studied 126 cities and counties with active gay rights ordinances in 1993. The localities were “scattered across the country,” and most likely “to be found in states with gay rights laws, hate and crime statutes which included sexual orientation, and in states that did not have anti-sodomy statutes.”10 However, 26 percent of the localities were located in states that did have anti-sodomy laws, suggesting activist activity.11 The lack of explicitly preemptive state laws pertaining to discrimination created “gray areas” in which localities tested the boundaries of their authority and challenged the spreading anti-gay sentiment by offering antidiscrimination protections within their jurisdictions. “These successes at the local level stand in stark contrast to a record of failure at the national level,” writes Wald et al.: Even with a sympathetic national administration and strong Democratic majorities in the 103rd Congress, gay rights advocates were unable to persuade Congress to fully repeal the ban on gays in the military, to add sexual orientation as a protected category under the Civil Rights Act, or to kill legislation denying federal aid to jurisdictions that “promote” homosexuality as an alternate lifestyle. 12

Where the federal government failed to act, some local governments stepped in. The environment within which these localities acted was hostile; backlash from religious groups, fear-based AIDS and HIV awareness, the Supreme Court’s 1986 decision that the Constitution offered no “right to commit homosexual sodomy” (Bowers v. Hardwick), and a variety of other issues served to slow the gay movement in the 1980s.13 Local leaders who acted supportively faced harsh political scrutiny.14 One example of local activism during this period: San Francisco passed the first Domestic Partner Ordinance (DPO) in 1996, requiring “all city contractors (to) provide the same benefits to registered domestic partners of employees as they do to spouses of employees.”15 Other localities began to draft similar ordinances, even as San Francisco’s ordinance faced its anticipated legal challenge. The primary legal question centered on the federal government’s preemption of “state and

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local laws that ‘relate to’ employee benefit plans” under the Employee Retirement Income Security Act of 1974 (ERISA).16 San Francisco’s requirement that businesses provide benefits to same-sex partners outside of California was alleged to be a violation of the Commerce Clause in that it “created a regulatory effect on the contractors’ out-ofstate activities.”17 San Francisco was sued by the Air Transport Association of America and the ordinance was eventually found unenforceable in the case of airports (with some non-economic benefits exceptions), but wholly enforceable in other industries. San Francisco’s activism had a diffusive effect: Between 1996 and 2004, 12 cities followed San Francisco’s lead in passing equal benefits ordinances (EBOs). Today, there are twelve cities, one county, and one state (California, passed in 2003) with active EBOs. Similar, albeit more limited, ordinances are found in an additional five U.S. cities.18 In addition, despite findings in their favor, airlines (and many Fortune 500 companies) subsequently began to provide health coverage and pensions to same-sex partners, acknowledging the growing importance of the gay population to their bottom lines. “A 1999 report by the Human Rights Campaign… found that 76% of employers nationwide providing domestic partner benefits were doing so in response to the San Francisco ordinance.”19 Even as progress was occurring in some localities, the Republican takeover of Congress in 1994 and the heightened conservative sentiment against same-sex rights, and marriage especially, prompted the enactment of the 1996 Defense of Marriage Act (DOMA) by Congress, signed into law by President Bill Clinton. The Act reads: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.20

With the enactment of the federal DOMA, 41 states followed suit with DOMAs of their own. Twenty-nine states had DOMAs in their constitutions and 11 states statutorily confined marriage to one man and one woman when the Supreme Court held the federal DOMA unconstitutional on June 2013.21

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New Life in the New Century

Same-sex rights resurfaced in the public debate in the 2000s. Two events in particular focused the public’s attention: First came the reversal of Bowers v. Hardwick with Lawrence v. Texas (2003). In this case, the Court cited the Fourteenth Amendment’s Due Process Clause, striking down state laws that criminalized same-sex sodomy. Soon after, the Massachusetts Supreme Judicial Court ruled that the state constitution guaranteed equal marriage rights for same-sex couples (Goodridge v. Massachusetts Department of Public Health, 2003). The Massachusetts court explained: “The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”22 Public backlash was rapid and strong, fueled by the coming election year. Republican party members saw the opportunity to mobilize voters in opposition to same-sex marriage and used the “threat” of “the marriage quest” as a political tool. Two of the main groups that fell in line behind the Republicans were the Christian Right and non-religious social conservatives. Their positions were, and are, similar: they believe that heterosexual marriage is a pillar in American citizenship and national identity. Whether or not they believe that strengthening society by preserving the traditional marriage institution will further religious ends, they came together in their belief that “same-sex marriage is a fundamental threat to the republic as a whole.”23 Using same-sex marriage as a political tool, however, is not confined to the conservative set. Rather, San Francisco’s Mayor Gavin Newsom—now Lieutenant Governor of the State of California—quickly reacted to President Bush’s statement, capitalizing, intentionally or otherwise, on an alternative spin to the public debate. Gavin Newsom had been elected to office a little more than a month before his activism in a “fiercely contested race.”24 At 36, Newsom was the youngest mayor elected “in San Francisco in more than a century.”25 A native of the area, Newsom had served San Francisco on the Parking and Traffic Commission before taking office on the City’s Board of Supervisors, a post he held for about seven years before making his mayoral run. It was less than two months after Goodridge, when George W. Bush delivered his 2004 State of the Union address and promisedto“defend the sanctity of marriage.” Newsom was in attendance as a guest of Nancy Pelosi. He claims to have been stunned by the president’s statement, “I was there and I just was scratching my head, saying this was not the world that I grew up aspiring to live in, that he was talking about…I just found some of the words quite divisive.”26 Newsom

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decided to act in hopes of preventing the retrenchment of the traditional definition of marriage. Unfortunately for the mayor, California’s marriage laws clearly excluded same-sex couples from marrying. Moreover, they included no provision for local government officials to deviate from the statemandated rules about how to perform marriages or who could marry. In order to “prohibit persons of the same sex from entering lawful marriage,” the California Legislature had amended the Civil Code in 1977 to make explicit that marriage in the state arose only out of a civil contract “between a man and a woman.” Voters affirmed this position in a 2000 ballot initiative. For twenty-seven years, no plaintiff had challenged this restriction in court, and no judge in the state had ruled on whether the amended statute complied with the requirements of either the state or federal constitutions.”27 Public reaction to San Francisco’s licensing of same-sex marriage was strong—but not wholly negative. One critic scolded San Francisco for being a “bad city.”28 Others accused Newsom of “usurpation,”29 and branded him “lawless”30 and “a charlatan”31 for his extra-legal use of authority. Yet, many supporters of gay rights and, in particular, Newsom consistently defended his activism as a moral necessity, likening it to the civil disobedience that accompanied the rights movement of the 1960s.32 Gay rights activists remained hesitant, but also hopeful—particularly upon seeing the level of participation that occurred in public demonstrations during the period.33 In the case that followed, Lockyer v. City and County of San Francisco, the California Supreme Court declared that Newsom had overstepped his authority and voided the marriages that resulted from his activism. Appealing the California Supreme Court’s decision, a number of lawsuits were filed charging discrimination in California’s marriage licensing. These cases were combined, finally reaching the California Supreme Court which agreed to review (In re Marriage Cases). In a 4-3 opinion, the court decided that denying same-sex marriage was an unconstitutional civil rights violation (May 2008). Taking effect in June 2008, marriage licenses were, once again, issued to same-sex couples – this time, across the state, and legally. Five months later, California voters narrowly passed the muchpublicized Proposition 8, a ballot initiative designed to amend California’s constitution to define marriage as a union between one man and one woman. In May 2009, the California Supreme Court validated Proposition 8, although it allowed some 18,000 same-sex marriages that took place in the months leading up to Proposition 8 to stand. That decision was reviewed by the U.S. District Court serving Northern

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California.34 Final arguments took place in June 2010 and, in August 2010, the District Court struck down Proposition 8 citing due process and equal protection violations. In February 2012, the Ninth Circuit Court of Appeals upheld the lower court’s rejection of California’s Proposition 8 (Perry v. Brown, formerly Perry v. Schwarzenegger). In June 2012, the same court denied a request for rehearing. The matter was presented to the United States Supreme Court; while awaiting the Court’s decision, a stay on the lower court’s ruling that Proposition 8 violated the Constitutional rights of same-sex couples prevented further gay marriages to occur. In June 2013, the Supreme Court rejected the Ninth Circuit’s decision. The Court held that the proponents of Proposition 8 did not have legal standing to appeal the District Court’s decision to the Ninth Circuit. Only the state government had the right to defend the Proposition, and they chose not to. Gavin Newsom returned to San Francisco’s city hall to celebrate the decision with the first samesex couple to be legally wed in the United States. He had officiated their marriage ceremony in 2004. Case Diffusion

In the wake of San Francisco’s activism a number of localities joined in. The events that are offered below are not meant to represent the entire field of response, but are instead presented to demonstrate the diffusion of this activism and the speed and tone with which other localities reacted. February 20, 2004 – Eight days after Mayor Newsom’s order, New Mexico’s Sandoval County Clerk, Victoria Dunlap (a Republican) issued 66 same-sex marriage licenses in one day. Ms. Dunlap stated: “It’s going to be across the country and so we wanted to be ahead of the curve.”35 Although the clerk suspended action upon receiving notice from the state attorney general that same-sex marriage violated New Mexico law, the attorney general’s interpretation was never tested, so the validity of the licenses filed with the county (that same day) were never determined, their status was essentially left in limbo. Six years later, in August 2010, one of the couples filed for divorce and a state district judge ruled the original license valid and thus eligible for divorce and the division of property. Claiming to have only considered the issue of license validity and not whether same-sex marriage is legal in the state, the ruling does not establish precedent, but it is expected to inform future matters as they arise.36

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February 27, 2004 - Two weeks after San Francisco licensed same-sex marriages, the 26-year-old mayor of New Paltz, New York, Jason West, performed 25 same-sex marriages without licenses. Claiming it was his “moral obligation” to solemnize the unions of same-sex couples, West said, “It’s time that I added my voice and the voice of the people of the village of New Paltz to that growing chorus for fairness, equality before the law and basic family values… Separate but equal didn’t work for blacks and whites and it doesn’t work for gays and straight people.”37 Amy Goodman with Democracy Now interviewed the mayor: AMY GOODMAN: Can you tell us about your decision to defy the law? Do you see it as doing that? JASON WEST: Actually, I see it as my decision to uphold the law. There’s actually one clarification. We’re not issuing marriage licenses here. And New York State doesn’t require them. Article 3 of Section 25 of the Domestic Relations Law says that as long as the marriage…is properly solemnized, you don’t need a license, and that’s what I’ve done, I’ve solemnized these marriages. As to why I chose to do it, our State Constitution requires equal protection under the law. Our laws are gender neutral, they don’t mention the gender of people who get married. I took an oath of office last year to uphold that Constitution, and that’s what I intend to continue to do.38

West was subsequently charged with 19 misdemeanor counts of marrying without a license. All charges were eventually dismissed. February 27, 2004 – The mayor of Nyack, New York, John Shields, promised to recognize the marriages performed in New Paltz and claimed that he, too, would begin issuing licenses within days. Although licenses were never issued, the mayor, who is openly gay, his partner, and several additional couples approached the clerk requesting licenses. It was a friendly encounter. The Orangetown clerk, Charlotte E. Madigan, who had been alerted in advance, greeted the mayor with a smile before politely declining his request and handing him a onesentence statement. “Based on the opinions of the NYS Attorney General and the Department of Health, I am not legally authorized as Town Clerk to issue marriage licenses to same sex couples,” it said. Smiling and shaking hands with all, Ms. Madigan repeated her performance for each couple.

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“I am disappointed but not surprised by what happened here,” Mr. Shields said. “I will fight this as long as my attorneys are willing.”39

March 1, 2004 – The mayor of Ithaca, New York, Carolyn Peterson, announced that the city would recognize marriages performed in other jurisdictions and accepted marriage license applications from same-sex couples, forwarding them to the state. In response, New York’s Attorney General, then Eliot Spitzer, informally opined that same-sex marriage is illegal according to New York statute, but that same-sex marriages performed in other jurisdictions must be recognized. Six cities in New York quickly moved to recognize other jurisdictions’ same-sex marriages and civil unions. A bill to legalize same-sex marriage was introduced and passed the New York State Assembly in 2007, only to be defeated by the Senate in 2008. An executive order to recognize samesex marriages performed in other jurisdictions was issued in 2008, a few years after the six cities began recognition. Finally, another attempt to legalize same-sex marriage passed the Assembly in December 2009 before being defeated by the Senate the same month, 38-24. After additional false starts, the state’s Marriage Equality Act passed in June 2011, legalizing same-sex marriage in New York. March 3, 2004 – Portland, seat of Oregon’s Multnomah County, issued same-sex marriage licenses, citing discrimination under the state’s constitution. In support, Benton County Commissioners voted to issue same-sex licenses, but after receiving arrest threats and calls from the State Attorney General, the county opted to stop issuing marriage licenses altogether. This occurred on March 22, with the county promising to resume licensing when the state treated all citizens equally. Multnomah was made to stop recording the licenses of married samesex couples in April, bringing the validity of over 3,000 marriages into question. Nine couples, the county, and the American Civil Liberties Union filed suit against the State of Oregon, claiming discrimination.40 Although the Oregon Supreme Court ruled the “same-sex marriages performed a year ago in one county were unlawful… the county had overstepped its authority and that the licenses it had issued were unconstitutional under Oregon law,”41 the wheels of change were in motion. Within two weeks of Multnomah’s activism, the Oregon Attorney General notified the state’s counties that while the Registrar would not record licenses issued to same-sex couples, consideration of the constitutionality of the state’s marriage statutes would be expedited. This expedited review was the result of a negotiated agreement to stem further local activism. Before the Oregon Supreme Court “lawyers for

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the state argued… that while the decision to issue the licenses was unconstitutional, gay Oregonians should have the same benefits as married couples.”42 Quickly, “Gov. Theodore R. Kulongoski, along with several state senators, introduced a bill.…(April 2005) that would allow civil unions under state law.”43 The governor’s bill was one of 14 introduced in Oregon in 2005 that were supportive of same-sex rights (with no regular session in 2004).44 None passed. In the 2007 session, seven bills were introduced in support of same-sex rights. The three that passed established domestic partnerships for same-sex couples, included sexual orientation and gender identity to Oregon’s existing antidiscrimination law, and included gender identity and expression in the state’s existing hate crimes law (which incorporated sexual orientation in 2001). In 2009, six bills were introduced, all deemed “good” by the Human Rights Campaign (called “supportive” in this research); four passed, offering further protections in the areas of domestic partnerships, discrimination, and education policy. Oregon’s Constitution continues to limit marriage to one man and one woman; the state passed a comprehensive domestic partnership statute in May 2007.45 March 8, 2004 – Seattle’s mayor, Greg Nickels, issued an executive order recognizing same-sex marriage and extending equal rights and benefits to city employees and their same-sex spouses, stating that Washington’s Defense of Marriage Act (DOMA) violated the state and federal constitutions.46 Under Washington state law, marriage is defined as a male-female union and recognition of same-sex marriages performed in other states is prohibited. Nickels’ activism followed an abrupt adjournment (March 5, 2004) by the Washington Senate which prevented “a vote on a bill to prohibit discrimination against gays and lesbians statewide. Supporters were confident the bill would pass if it came up.”47 Claiming the senate’s action to be an “extreme far-right tactic to deprive people of equal rights,” Nickels, with the support of at least some of his council, moved to issue the executive order and to propose an ordinance which would “protect gay and lesbian couples who marry in places where same-sex marriage is legal.”48 The ordinance passed. (San Jose, CA, passed a similar ordinance the next day; it remains in effect.) Although challenged, the ordinance and the executive order persist. As a result, the state’s DOMA was reviewed by two courts in 2004, each declaring the DOMA unconstitutional. Hearing a combined appeal on those decisions, the Washington Supreme Court upheld the state’s marriage laws in 2006. However, the following year, the Washington legislature passed a bill creating domestic partnerships, and acted to expand domestic partnerships to enjoy the same benefits

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and privileges as married spouses (heterosexual) in 2009. In 2012, the Washington legislature agreed to allow same-sex marriages subject to voter approval in the 2012 November election. March 8, 2004 – Following a Superior Court ruling that New Jersey would not allow the licensing of same-sex marriage, the deputy mayor of Asbury Park, James Bruno, issued a license to the first same-sex couple to be married in the state, then officiated the marriage ceremony. He stated: “Laws are made to be broken at times to find out if they are really legit or not.”49 The validity of the license was questioned and the city joined a suit already underway. The New Jersey Supreme Court ruled that the state must recognize same-sex couples, but that civil unions would satisfy the state constitution’s equal protection clause. Since then, the state assembly voted to allow same-sex marriage. The measure failed senate approval in early 2010. July 13, 2004 – The Takoma Park, Maryland, city council passed a resolution in favor of same-sex marriage less than one week after gay couples sued the state for the right to marry. “The City Council unanimously approved the measure, which also calls on the city clerk to file an amicus brief supporting the lawsuit of the gay couples. Although the move is largely symbolic—only Maryland counties and the city of Baltimore can issue marriage licenses—town officials wanted to register their support.” Said council member Heather Mizeur: “Our goal now is to disseminate this to our colleagues in other municipalities and urge them to pass similar measures.”50 April 15, 2005 – New York City announces it will join five cities in New York in recognizing same-sex marriages performed elsewhere. The other cities are Brighton, Buffalo, Ithaca, Nyack, and Rochester.51 August 2007 – “A Polk County Judge in Iowa overturns the state law banning same-sex marriage and orders the county recorder to allow marriage licenses for same-sex couples.”52 Upon appeal, the Iowa Supreme Court determined to uphold the lower court’s decision. As a result, Iowa began issuing same-sex marriage licenses in April 2009. April 2009 – Washington, D.C. Council passes a “resolution to recognize same-sex marriages performed in other states.”53 In December 2009, the D.C. council passed a same-sex marriage law and began issuing licenses to same-sex couples in March 2010.

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LGBT Local Activism

During the course of this research I discovered 360 activist events pertaining to LGBT rights. Of those, 21 cities and eight counties acted in extra-legal ways that were unsupportive of LGBT rights. Another 58 cities and eight counties defied state law with supportive actions. Because others have focused on cases of legal activism,54 we will focus on confirmed extra-legal events here. Most unsupportive activism pertaining to LGBT rights occurred in the 1990s. Of the 29 localities that passed unsupportive laws, all but four were in Oregon, and all of their activity occurred between 1993 and 1994. (The remaining four cases occurred in Florida, Virginia, Texas, and Colorado.) Why the spurt of activism in Oregon? Conservative interest group pressure appears to explain a great part. The 1993 Hawaii Supreme Court decision, Baehr v. Lewin, in which the court provided that denying same-sex couples the right to marry violated the state’s constitution, sparked a flurry of anti-LGBT activity across the nation, mostly in the form of reprimand. While the case was sent back to a lower court to determine justification for discrimination, the Oregon Citizens Alliance (OCA), a conservative group founded by Lon Mabon in 1987, reacted to the court’s determination by sponsoring state-wide (Oregon) ballot initiatives in 1992 and 1994. Called Measure No. 9, these initiatives were attempts to curb gay rights by refusing to recognize “any categorical provision such as “sexual orientation,” and similar phrases that include homosexuality, pedophilia, sadism or masochism. Quotas, minority status, affirmative action, or any similar concepts, shall not apply to these forms of conduct, nor shall government promoted these behaviors.”55 When Measure No. 9 failed at the state level, the OCA turned its attention to local governments, calling their local efforts “baby 9.” 56 Again, 25 Oregon localities passed anti-LGBT measures. In contrast, 18 local councils responded by passing proposed charter amendments that would “prevent anti-discrimination protections for gays and lesbians.”57 While the same type of activity occurred in several states across the country, what makes this behavior activist is that, following the first few communities’ activism, the Oregon legislature enacted HB 3500 (1993), prohibiting localities from enacting or enforcing policies that singled out groups by sexual orientation.58 Subsequent local activity leveled at homosexuals was in direct violation of state law. Supportive activism regarding LGBT rights will be discussed in the next section. Table 6.1 offers a comparison of unsupportive activist localities in the state of Oregon (the next section includes all unsupportive localities)

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to the state and national mean population, median household income, percent LGBT population in 2010, educational attainment, and median age of the population. These characteristics were selected to provide a rough sketch of Oregon’s activist localities. Previous research indicates that larger cities with higher education levels and younger residents are more likely to pass progressive policies.59 Also included is the percentage of same-sex households in 2010. Although this is an imperfect measure, we use the 2010 data as it is the first decennial census to release raw data regarding same-sex relationships. In 1990, the mean size for Oregon’s unsupportive activist municipalities was 13,454 (median = 7,126). While these jurisdictions are rather small, they were, on average, larger than the statewide mean of 8,384. The median age of activist residents was 33 while the state’s median age is one year older. About 12 percent of the activist population over the age of 25 held a bachelor’s degree or higher, compared to the state’s 21 percent. The median household income for these cities was $21,740, $5,500 less than the state median household income and over $8,000 less than the national median household income. Table 6.1: Comparison of Anti-LGBT Localities in Oregon with State and National Figures Activist Localities in Oregon Mean Population of Jurisdictions 1990 1 excluding counties Median Household Income 1990

1

Percent LGBT Population in 2010 in 2 cities with populations of 2,500+ Mean Percent with Bachelor’s Degree 1 or Higher 1990 Median Age 1990

1

United States

Oregon

19,055

3

13,454

8,384

$21,740

$27,250

$30,056

3%

3.2%

2.5%

12.23%

20.6%

20.3%

33.4

34.6

33

1

U.S. Census Bureau. Social and Economic Characteristics United States/Oregon: 1990. 2 U.S. Census Bureau. Profile of General Population and Housing Characteristics: 2010. 3 Calculated for jurisdictions with populations of 2,500+.

As of the 2010 Census, the most accurate accounting thus far of same-sex households,60 LGBT households in unsupportive communities

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comprises an average of 3 percent of the population, slightly less than Oregon’s 3.2 percent, but certainly higher than the national average of 2.5 percent.61 The state-level percentage of same-sex households ranges from 1.9 percent (Alabama) to 3.9 percent (Maine).62 Rather than suggesting that Oregon’s anti-LGBT activism was an organic backlash to a growing or visible gay population, it appears that the OCA targeted localities where it thought it had sufficient supporters to pass local charter initiatives. In Canby, for example, locals were divided 55-45 percent in favor of an anti-LGBT initiative in 1993. One resident claimed “The OCA created a problem where none existed…We’ve been living here peacefully, not really caring who was gay.” Another resident claimed that before OCA descended on the town, there was no real separation between gay and straight residents: “There is a gay community in Canby now. There wasn’t before. The OCA says we have a militant agenda. We didn’t, but we’re working on an agenda now.”63 Other cases of local activism, this time supportive of LGBT rights, have been passed from the late 1970s to today. It appears that the earliest efforts included adding sexual orientation to local antidiscrimination laws, in some cases (even early on) these laws applied to both public and public employees. Those efforts gradually came to focus on relationship recognition (in some localities), usually via domestic partner registries. Of the hundreds of supportive LGBT laws passed locally, this research identified 67 that were extra-legal. Most of these cases involved ordinances that offered discrimination protections for lesbian and gay individuals in states that prohibited their doing so. After 2004, local activism focused almost exclusively on the provision of same-sex marriage licenses, or the recognition of other jurisdictions’ same-sex marriages. The differences between supportive and unsupportive activist localities related to LGBT rights support past research wherein progressive policies have been associated with larger populations, higher education, and younger residents.64 As Table 6.2 indicates, the mean population of supportive cities in 1990 was 262,841 compared to unsupportive activist cities with an average population of 36,150. (New York City was left out of the supportive calculations, and Houston was excluded from the unsupportive calculations, due to their unusually large populations compared to their activist peers. For the same reason, activist counties were excluded as well.) Household income for both supportive and unsupportive activist localities was below the national median. Supportive localities did, however, enjoy a median household income that was nearly 18 percent higher than the unsupportive localities. In both instances, the LGBT population was higher than the

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national average. In the case of supportive localities, the percentage of the population living with a same-sex partner in 2010 was one percentage point above the national average. In unsupportive localities, the percent of gay households was less that one percent higher than the U.S. average. Educational attainment for those 25 years and older was more than eight points higher than the national average in supportive localities, and nearly six points below the national average in unsupportive activist localities. With regard to median age, it appears that supportive localities are slightly younger than the national median while unsupportive localities are three years older. Sixty-seven localities in 24 states were involved in supportive LGBT local activism. With regard to unsupportive local activism related to LGBT rights, 30 localities in five states were involved. The distribution of these localities within census divisions is indicated in Table 6.3. As shown, the most activist census division pertaining to both supportive and unsupportive LGBT rights is the Pacific. Table 6.2: Comparison of Activist LGBT Localities

Mean Population of Jurisdictions 1990 excluding counties, Hou1 ston and New York City. 2 Median Household Income 1990 Percent LGBT Population in 1 2010 Mean Percent with Bachelor’s 1 Degree or Higher 1990 1 Median Age 1990

Supportive Localities

Unsupportive Localities

United States

262,841 3 (92,703)

36,150 3 (9,176)

5,757 4 (19,055)

$28,606

$23,602

$30,056

3.46

3.13

2.5

28.7

14.46

20.3

32.4

36

33

1

U.S. Census Bureau. 1990 Social and Economic Characteristics. American Community Survey. 2010 ACS 5-year Estimates. 3 Median local populations in parentheses. 4 1992 Census of Governments. Vol. 1, No. 1, Tables 7 and 8. Mean population for subcounty governments 2,500+ in parentheses. 2

In sum, it appears that localities that are supportive of LGBT rights are larger, earn higher incomes, have a larger gay population, and are more highly educated than their unsupportive peers. In comparison to the U.S., supportive localities are larger, have lower median household incomes, higher same-sex households as a percentage of the local household population, have levels of educational attainment and a

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slightly younger population than the national median. In comparison to the U.S., unsupportive localities are smaller, earn less, have more LGBT households, lower educational attainment levels, and are older than the U.S. median. Discussion

Several topics repeatedly presented themselves during my research. They are offered here for discussion: What, if any, is the role of local leaders in constitutional interpretation? Can activism be used to signal higher government that the public is ready for gay rights policy change? The need for local responsiveness is discussed, as is the usefulness of local activism to strategic economic development. The fear of gay rights leaders that recent LGBT activism might derail the gay movement is discussed. The usefulness of local activism as a tool to educate the public, and the potential of finding gay rights resolution in the courts are surveyed below. Constitutional Protection Martin Luther King, Jr.: One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws…65 Mayor Newsom: I am just a guy who does stop signs and tries to revitalize parks. . . I know my role. But I also know that I’ve got an obligation that I took seriously to defend the Constitution. There is simply no provision that allows me to discriminate.66

What role, if any, does or should a locality have in interpreting state or national constitutions? The lack of mention of localities in the Constitution and their legal subordination to the states seems to have ensured their exclusion from constitutional debates. Nonetheless, when localities defy higher LGBT laws, they often proclaim themselves to be the protectors of the people under state or federal constitutions. In most cases, they proclaim that some higher law violates constitutional guarantees of due process and equal treatment, and that they are legally and morally obligated to non-enforcement or overt disobedience. While the weak legal status of localities is not up for debate, some have asserted that localities actually do have a legal role in “safeguarding individual constitutional rights.”

Table 6.3 Distribution of Supportive and Unsupportive LGBT Activism by Census Division New England

Supportive

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Unsupportive Activism by Census Division

Middle Atlantic

East N. Central

West N. Central

10 (15%)

9 (13%)

9 (13%)

4 (6%)

0

0

0

0

South Atlantic 7 (10%) 2 (7%)

East S. Central 0 0

West S. Central 7 (10%) 1 (4%)

1

Mountain 6 (9%) 0

Pacific 18 (27%) 27 (89%)

Totals 67 (100%) 30 (100%)

9 5 6 43 95 10 9 9 4 (9%) (5%) (6%) (45%) (100%) 0 (11%) (9%) (9%) (4%) Percentages are rounded. 1 U.S. Census Bureau. Census Regions and Divisions of the United States. New England: CT, ME, MA, NH, RI, VT; Middle Atlantic: NJ, NY, PA; East N. Central: IN, IL, MI, OH, WI; West N. Central: IO, KS, MN, MO, NE, ND, SD; South Atlantic: DE, DC, FL, GA, MD, NC, SC, VA, WV; East S. Central: AL, KY, MS, TN; West S. Central: AR, LA, OK, TX; Mountain: AZ, CO, ID, NM, MT, UT, NV, WY; Pacific: AK, CA, HI, OR, WA.

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The regime of “constitutional tort” liability under 42 U.S.C. § 1983 treats local governments as integral to the protection of constitutional rights, exposing both individual officials and government entities to monetary damages for rights violations. While § 1983 serves the goal of victim compensation, it also acts as a disincentive for government actors to violate individual constitutional rights.67

With liability assigned to officials for rights violations, the door to interpret the constitutionality of higher laws is left open, despite any expectation of subordination. Individual actors must decide for themselves whether their enforcement of higher law personally exposes them to litigation. In some cases, it may be that local leaders feel at risk of litigation whether they act or not. Nevertheless, the courts have made clear that local leaders must refrain from constitutional interpretation. In Lockyer v. City and County of San Francisco, the immediate case resulting from Mayor Newsom’s activism, the California Supreme Court considered “…whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.”68 The court determined that San Francisco had, indeed, overstepped its bounds of authority. Critics of local activism argue that whether or not a local leader has the wherewithal to interpret the Constitution is irrelevant.69 Local leaders who detect issues with higher law are expected to seek resolution through legal, rather than extra-legal, channels. In this, localities are highly disadvantaged. Consider the Oregon Supreme Court’s comments on Multnomah County’s activism: “Obviously, any such remedy must originate from a source with the authority to speak on that basis. The legislature has such authority and, in an appropriate adversary proceeding, the courts have it as well. But there is no source of law from which the county could claim such authority.”70 In addition, it is unlikely that localities can directly sue their states for resolution; the “doctrine of legal capacity, in its current form, likely would have prevented San Francisco [and other jurisdictions] from raising its constitutional doubts about the state’s marriage ban in court.”71 For over 100 years, it has been the dominant position of the courts that localities cannot sue their states. “This route might appear foreclosed… by a number of cases from the early twentieth century such as Hunter v. City of Pittsburgh, City of Trenton v. New Jersey, and Williams v. Mayor and City Council of Baltimore, in which the Supreme

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Court used categorical language to bar governments from bringing suit against their states under the Federal Constitution.”72 While some courts have chosen to relax the legal capacity doctrine in certain circumstances, at this time legal claims against the state are most likely to prove fruitless. How might a locality achieve accommodation to local preferences when higher authority, in this case the state of Oregon, is resistant to change? If appeals for legislative remedy prove unproductive, are local leaders resigned to accept the status quo? The Lockyer majority suggested that “[l]ocal governments faced with a statute they believe to be unconstitutional may simply carry out their duties, while advising people whose rights are in question to sue them.”73 But this “remedy” places localities in the position of defendant for the laws that they themselves do no support. The costs associated with any litigation and the reputational damage they might incur for defending discriminatory laws is a high price to pay to bring constitutional concerns before a judge. Renegade Leaders Observers on both sides of the battle over marriage for same-sex couples condemned the actions of San Francisco and other local governments as extra-legal—the abandonment of the rule of law for the capricious rule of men and women. State governments quickly took up this banner… filing criminal charges against the mayor of New Paltz, New York, and using the threat of litigation to intimidate the commissioners of Oregon’s Benton County.74

The accumulation of powers in one person or branch of government has long been feared in the United States. This fear prevented the creation of a centralized nation, the empowerment of the executive over legislative branches of government in the states, and it prevented localities from creating strong mayors, even when the need for coordination and centralization became undeniable in the decades after the Civil War. The distrust that Americans hold for strong, central authority remains, yet it has been balanced over time by the recognition of the need for accountability and efficiency—neither of which is easily found in a system of dispersed legislative power. Nevertheless, the concentration of governmental functions into the hands of one leader or branch of government is avoided. As the court declared in Hebel v. West (2005)—the case addressing the same-sex marriages performed by the mayor of New Paltz, NY, Jason West—

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The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny[ ]. Here, West robed himself with judicial powers and declared the marriage laws of this State unconstitutional. Having concluded that the Legislature violated the constitution, he then wrapped himself with that body’s power and drafted his own set of documents for licensing marriages.75

Conversely, activist leaders often proclaim their intent is to serve the people where other leaders failed to do so. Rather than centralizing power, they claim to be democratic expressions, voices for those who otherwise cannot speak for themselves. For them and those whom they represent, their activism is a contribution not only to democracy, but to their jurisdictions and to the protection of constitutions. Consider, too, that their activism strengthens the federal system by providing governmental responsiveness that is not forthcoming from the state or national levels. Signaling Higher Government Marrying same-sex couples gave expression to the broader frustration felt by Mayor Newsom, and likely shared by many of his fellow San Franciscans, that the national agenda was out of step with local values.76

Believing that higher leaders are out of touch with the public, activists may seek to generate policy change by raising issue awareness and thus reviving the political debate. Clearly, Mayor Newsom maintained this belief and strategy with regard to same-sex marriage. As Newsom’s activism diffused across the nation, and as the media spotlighted each event and its supporters, it became increasingly clear to both state and federal leadership that the religious right did not speak for all with regard to same-sex marriage or LGBT rights. Group mobilization was a crucial component of this movement, and it benefitted from the “cracks” in our federal system. When policy remedies were resisted by higher levels of government they were welcomed by some sympathetic localities. This is a critically important function of federalism’s layers and divisions of powers: “the very existence of multiple venues means that cracks are likely to appear somewhere and these can be exploited by political activists.”77 According to Matthew Parlow:

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Local innovation will not always lead to desirable policy outputs or results. Nor does local decentralization guarantee success. However, consistent with Justice Brandeis’ vision of federalism and with the concurrent powers doctrine, local governments’ experimentation— both its successes and failures—has the potential to inform state and federal officials as to what laws and policies might be translatable to the broader levels of government.78

The more localities that responded with activism or statements of support, the harder it became for higher leaders to defend the status quo position on same-sex marriage. This, of course, did not result in favorable policy change in every state or at the national level, at least not immediately. But the message was out and policies that supported same-sex rights, of which marriage is only one, were being tested at the local level in the laboratory fashion that Justice Brandies imagined for the states. Indeed, local governments have long been key to testing the rhetoric and means by which LGBT rights are introduced to society. There are indications that the states have learned from their localities, adopting a number of local LGBT rights efforts such as the recognition of domestic partners. For example, the first city to pass a domestic partnership registry was San Francisco in 1982; 79 at least 16 California localities followed with same-sex relationship recognition, mostly throughout the 1980s and 1990s. 80 California followed with limited recognition in 2000 and expanded this recognition to include nearly all of the rights and protections of married spouses in 2005.81 Cities began adding sexual orientation to local anti-discrimination laws in the 1970s, and became particularly active through the late 1980s. The states followed suit. In Illinois, for example, at least 11 localities had included sexual orientation to local protections before the state adopted a similar policy in 2005. In Maine, at least nine localities had added sexual orientation to local discrimination policies before the state joined them in 2005. The same pattern holds for Maryland, Massachusetts, Minnesota, New York, Oregon, among others, as well as for other rights such as relationship recognition, the inclusion of gender identity to discrimination policies, rights to equal benefits, and the recognition of same-sex marriages performed in outside jurisdictions. Local Responsiveness But the city is directly accountable and accessible to the citizenry in ways that other levels of government are not. Indeed, the mayor

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contends most directly with citizens’ dissatisfaction with government failures even if those failures are entirely outside her control.82

It is unlikely that local leaders would engage in activism without a pressing local issue or citizen demand; at the very least, local activism requires the specter of urgency, permitting leaders to justify their behavior. Where inaction is intolerable, political leaders may have freedom to act to alleviate local conditions. Local activism has the power to focus the blame for important conditions or issues on state or federal leaders while, perhaps, shaming them into action. Remember that “[public] officials are in competition for political credit and spoils… The most mundane form of competition is the direct competition for credit and avoidance of blame.”83 While local leaders cannot force higher governments to assume responsibility for their own policies and actions, they can use political strategies—including activism—to educate their constituents to the true source of neglect. Higher government neglect may, in part, stem from the perspective of state and federal representatives who see the locality as a “local electorate” rather than a “local polity.”84 Representative districts are not confined to jurisdiction boundaries. Legislators’ focus often incorporates multiple communities, or fragments of communities, with various conflicting preferences and demands, as well as the interest groups that maintain pressure for particular subsets of those communities or other interests. From this level of abstraction, legislative activity involving local matters is generally limited to their timely injection into local problems to maintain political clout among the electorate. When local leaders engage in activism, they force state and federal leaders to pay attention to issues that might otherwise continue to be neglected. They may not retain credit for the changes they helped to stimulate, but local leaders may sometimes use the self-interested nature of higher governments to accomplish local ends. The need for responsiveness was discussed in previous chapters: In short, localities that do not respond to local demands and conditions risk losing residents and businesses. Despite the need to respond to local demands and conditions, many issues fall beyond local control. Alternatively, local leaders may want to appear responsive to stated or unstated local desires in order to solidify public support or establish their cities as distinct—unique among their peers. As economic and demographic circumstances become more complicated in the coming years, the need for this type of political governance may rise. In this effort, activism offers benefits: “Charismatic leadership can generate collective feelings of ownership and belonging and can articulate a

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city’s civic identity. Even the symbolic acts of a strong mayor can alter the popular perception of the city. To the extent that city residents begin to understand themselves as members of a unique polity, they are more likely to demand recognition as an identifiable political constituency.” 85 Civic identity may help to cultivate the distinction that localities need to market themselves in the new economic environment. Marketing and Visibility …[T]he rhetoric of boosterism takes up a disproportionate part of the discussions concerning city politics. The “attracting industry” and “favorable climate for business” arguments are introduced at nearly every juncture and in connection with every decision, no matter how far-fetched the connection.86 Because a locality’s fiscal health is determined by the private generators of wealth in the jurisdiction, attracting high-value residents and firms and deflecting high-cost residents and firms are the municipality’s goals.87

As previously discussed, today’s competitive localities must project an atmosphere of tolerance and uniqueness.88 Robin Hambleton and Jill Simone Gross write: “Striving to be like everywhere else sounds like a losing strategy if you are trying to attract talented wealth creators. These professionals, sometimes dubbed the “creative class,” clearly do not want to live in “could be anywhere” urban areas. They seek locations that support a diversity of cultural and lifestyle options.”89 The differentiation of place—its brand—helps mobile people and businesses to identify a locality as a unique and exciting place to live or visit. “To be successful, the marketing effort must ordinarily convince people that the place has something “authentic” that they should find appealing. In this context, authentic means that the tradition, object, or event being promoted is intrinsically rooted in the place.”90 Activism can help to set a locality apart. For example, most are aware that San Francisco has long been considered one of the most gay-friendly cities in the nation. The city and the media reminded us of this in the month following San Francisco’s decision to license the marriages of same-sex couples as “throngs of gay men and lesbians…[took] their place in a queue of couples sharing food, blankets, chairs, and friendship while waiting outside City Hall to obtain marriage licenses, and media coverage flooded the nation with images of the couples waiting in line, then emerging from City Hall waving marriage licenses.”91 While not all

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localities will benefit from projecting a progressive image, a growing number may. Because the new economy attracts younger, highly educated workers, cities are gearing their development plans toward “young, educated, wealthy, and diverse population[s that] tend to be more progressive politically than other demographic groups.”92 In the face of federal and state inaction, those who desire to live in an area that supports progressive lifestyles may see aggressive local behavior, such as same-sex marriage recognition, as an indicator of lively governance and a vibrant environment. An Upset to the Gay Movement? [Congressman Barney] Frank supports gay marriages, just not the ones in San Francisco. Those were not legal marriages but acts of civil disobedience, he says, a mass “spectacle.”93 What are your plans for retirement? Barney Frank: I plan to write, lecture, to marry my partner Jim Ready, and continue to work on equality issues as a private citizen. 94

“In striking contrast to the African-American civil rights movement, where legal action was often carefully coordinated with political strategy, the battle over gay marriage initially caught gay leaders by surprise.”95 Mayor Newsom participated when he announced that he would move on the issue of same-sex marriage in 2004.96 Following a major step forward for LGBT rights the year before when the U.S. Supreme Court ruled state laws that criminalized same-sex sodomy unconstitutional, and the Massachusetts Supreme Judicial Court’s ruling that the prohibition of same-sex marriage violated the state’s constitution, social conservatives and the religious right moved quickly to “protect the sanctity of marriage,” enlisting the president’s help in that effort. It seemed unlikely that anything but retrenchment was in the near future for same-sex rights. Newsom’s activism, with that in mind, should have been a welcome upset. But it was not universally supported by the LGBT community, at least in part because some feared that the extra public attention, as well as judicial scrutiny, would slow the incremental progress for which activists had worked so hard since the 1970s. A great part of their hesitation came from the extra-legal approach taken by the city and the cities and counties that imitated San Francisco, as well as from the perceived likelihood of defensive backlash from conservative leaders, individuals, and governments.97 It is an interesting question: “…[W]hat happens when an interest group gets

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something it doesn’t particularly ask for? Such can arguably be said to be the case for gay Americans and state-sanctioned civil marriage.”98 What happens when your strategy is upset and your coalitions and advocates in politics, the press, and the community are surprised and frustrated by your lack of control over the issues and strategies they believed were being comfortably and capably orchestrated? The efforts to further same-sex marriage came from outside the established activist community (although with some of their blessings), leading to “no small amount of tension between pro-gay lobbyists and legislators (like openly gay Rep. Barney Frank (D-MA)) and the agenda of gay-rights attorneys”99 who took the initiative to further same-sex marriage via the courts. Where decades of gay advocacy had been devoted to issues of liberty, the banner was now hoist for equality—an entirely different approach and question than had previously been posed to state and national leaders and to the general public.100 And these previous attempts to further LGBT rights had been only partly successful. Recall that the 1990s brought the federal Defense of Marriage Act, passed by a Democratic president, as well as Don’t Ask Don’t Tell as an addition to military policy. In short, gay activists were placed in an “unenviable position…advocating for gay marriage with a distinct disadvantage in public opinion...”101 But did it upset the movement? As of January 2013, 37 states prohibited same-sex marriage, 30 via constitutional amendment. Nine states—Massachusetts, Maine, Maryland, Washington, Connecticut, Iowa, Vermont, New York, and New Hampshire—and the District of Columbia issue marriage licenses to same-sex couples. In Massachusetts, Connecticut, and Iowa, same-sex marriage was ordered allowable by the courts. State legislatures voted to allow same-sex marriage in the remaining states. For California, samesex licensing remains on hold, although marriages performed between June 11 and November 4, 2008, remain valid. Domestic partnerships and/or civil unions are recognized by eleven states – Delaware, Illinois, Rhode Island, New Jersey, California, Oregon, Nevada, Washington, Hawaii, Maine, Wisconsin – and the District of Columbia.102 In June 2012, a federal district judge in New York ruled that the U.S. DOMA violates the Constitution. This ruling followed others striking down the federal DOMA—“a federal appeals court, two federal district courts and a bankruptcy court.”103 President Barack Obama announced in 2011 that he would not defend the federal DOMA. In response, Republicans in Congress took up the task “with relish.”104 Despite their efforts, as well as others’, the federal DOMA was found unconstitutional by the U.S. Supreme Court in the summer of 2013.

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It is hard to say whether the movement for gay rights was upset; perhaps it simply changed direction. While backlash was certainly stirred, great gains were made, as well. These gains have brought gay rights advocates on board with the new movement; even the reluctant may find reason to join: Says Lisa Stone of the Northwest Women’s Law Center and Lambda Legal Defense and Education Fund: “Declining to take aggressive action is not stopping or mitigating backlash.”105 Educating the Public San Francisco spoke to a wider audience than just the courts. Its highly visible decision to issue marriage licenses to same-sex couples also served a public education function. By marrying same-sex couples in San Francisco’s stately city hall, the city put thousands of same-sex couples of all ages, classes, races, and styles on display for the nation and the world, sending a more immediate and powerful message than a lawsuit ever could.106

As mayor, Newsom used his access to the machinery of government to expand “the scope of conflict,”107 moving same-sex marriage beyond the narrow confines of the gay community and conservatives. By licensing same-sex marriage, Newsom challenged state authority and questioned the constitutionality of its laws. The media was captivated by this defiance; as a result, the unequal treatment of same-sex couples became a topic of public debate that was unavoidable by leaders in higher government, and, most significantly, state and federal courts. The public has responded in the ensuing years. San Francisco’s activism and its diffusion can be credited, at least in part, for recent changes in public opinion regarding same-sex marriage. According to the Pew Research Center, 60 percent of the population opposed same-sex marriage in 2004, and 35 percent were strongly opposed. Today, 44 percent oppose same-sex marriage and only 22 percent strongly oppose. In 2004, only 31 percent of the American population favored same-sex marriage; today, 48 percent of the population favors gay marriage, indicating a growing public acceptance of homosexuality, generally.108 How much of this change can be attributed to local activism is not clear, but it does seem that media coverage of San Francisco’s activism and the court cases that followed have had an effect on California’s voters. In 2008, voters passed Proposition 8, a ballot initiative to ban same-sex marriage in the state’s constitution, by 52 to 48 percent. The latest Field Poll shows that 34 percent of registered California voters now disapprove of same-sex marriage while 59 percent approve.109

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While much of the shift in public opinion over the past 35 years can likely be attributed to generational change (28 percent of registered voters in California approved of same-sex marriage in 1977), the leap of 15 percentage points since 2004 in favor of same-sex marriage, versus six percentage points over the seven years leading to 2004 (from 38 percent in 1997 to 44 percent in 2004), is suggestive. Court Resolution [G]iven that courts often look to what other government entities have done in reaching their conclusions, San Francisco and the cascade of other local governments who issued marriage licenses to same-sex couples sent a message to judges that marriage for same-sex couples was not an outlandish proposition.110

Local activism often addresses issues that are controversial, such as same-sex marriage, gun control, and the treatment of undocumented immigrants. As stated above, the political risks associated with these issues often impede legislative action, but are retained to legislative authority, nonetheless. Localities that enact policies in these areas subject themselves to legal challenges initiated by state attorneys general or by opposition groups or individuals. Regardless of plaintiff or determination, court activity is often sufficient to release the pressure for legislative action.111 The sticky wicket of controversial policymaking is avoided by allowing legislators to deflect blame for tough decisions to the courts. If the court’s determination clearly conflicts with popular preferences, statutory remedies that were previously too politically costly may become accessible; legislators can lean on public outcry as a policy mandate. On the other hand, court determinations that support the status quo may be used to defend legislative inaction. Same-sex marriage and LGBT rights, however, have suffered in the hands of legislators who have proven more likely to favor their conservative constituents than not. While public support for same-sex marriage is growing, 37 states continue to discriminate against same-sex couples via statute or constitutional amendment. With lack of public support and heavy pushback against legislative measures to move samesex marriage forward, perhaps court resolution, as the pro-same-sex marriage attorneys argue, is the most viable means of change. In this effort, local governments are critical. Through their activism, they provide legal standing to couples who have been granted the right to marry only to have that right revoked by the state. This is not the only avenue to achieve standing, but it does generate an effective

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“performance”112 that moves complaints out of obscurity, placing pressure on legislators and the courts to consider equitable resolution.

Notes 1 Lockyer v. City and County of San Francisco, Excerpt from Mayor Newsom’s Feb. 10, 2004 letter to the County Clerk’s office. 2 Staff writer, “Mayor defends same-sex marriages.” 3 Newsom, “Feb. 12, 2004: First Licensed Gay Marriage in America.” 4 Staff, “Second Oregon County Says Gay Couples Can Marry.” 5 Wald, Button, and Rienzo, “The Politics of Gay Rights in American Communities,” p. 1154. 6 Cain, “Litigating for Lesbian and Gay Rights,” pp. 1551-1641. 7 Egan and Sherrill, “Marriage and the Shifting Priorities of a New Generation of Lesbians and Gays,” p. 229. 8 Wald, Button, and Rienzo, “The Politics of Gay Rights in American Communities,” p. 1154. 9 Ibid., p. 1153. 10 Ibid., p. 1164. 11 Ibid., p. 1174. 12 Ibid., p. 1153. 13 Eaklor, Vicki L., Queer America, pp. 165-196. 14 Ibid. 15 Brauch, “Municipal activism v. federal law,” p. 926. 16 Ibid., p. 925. 17 Pillsbury, Winthrop, Shaw, and Pittman, “District Court Opinion Involving San Francisco Ordinance Requiring Benefits for Domestic Partners.” 18 Human Rights Campaign, “Equal Benefits Ordinances.” 19 Romney, Lee, “Activism Defines S.F. City Attorney’s Office.” 20 1 U.S.C. § 7 – Definition of “marriage” and “spouse.” 21 Ellement, Finucane and Valencia, “Federal Appeals Court in Boston Rules Defense of Marriage Act Unconstitutional.” 22 Goodridge et al. v. Department of Public Health. 23 Josephson, “Citizenship, Same-Sex Marriage, and Feminist Critiques of Marriage,” p. 272. 24 About Gavin Newsom, Biography. 25 Ibid. 26 Murphy, “San Francisco Mayor Exults in Move on Gay Marriage.” 27 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 224. 28 Lithwick, “Bad City.” 29 Reynolds, Instapundit. 30 Lithwick, “Bad City.” 31 Ford, “Civil Disobedience.” 32 Staff writer, “Mayor defends same-sex marriages.”

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33 Taylor, Kimport, van Dyke, and Anderson, “Culture and Mobilization,” pp. 865-890. 34 Perry v. Schwarzenegger. 35 Martinez, “N.M. Halts Brief Run of Same-Sex Marriages.” 36 Associated Press, “New Mexico Judge Rules Same-sex Marriage License Valid.” 37 Wald, “New York Town’s Mayor Marries Same-Sex Couples.” 38 Goodman, “New Paltz, NY Mayor Arrested for Solemnizing Same Sex Marriages.” 39 McFadden, “With Polite refusal, Same-Sex Marriage Issue Reaches City Hall.” 40 Li v. State of Oregon. 41 Kershaw, “Oregon Supreme Court Invalidates Same-Sex Marriages.” 42 Ibid. 43 Ibid. 44 Evans, “Equality from State to State.” 45 National Conference of State Legislatures, “Timeline – Same Sex Marriage.” 46 Nickels, “Q and A Regarding Mayor Nickels’ Executive Order and Proposed Ordinance on Gay Marriage.” 47 George, “Nickels helps out same-sex marriage.” 48 Ibid. 49 Robertson, “Civil Disobedience Adds to Battle of Same-Sex Marriage.” 50 Paley, “Takoma Park Council Backs Same-Sex Unions.” 51 National Conference of State Legislatures, “Timeline – Same Sex Marriage.” 52 Ibid. 53 Ibid. 54 Wald, Button, and Rienzo, “The Politics of Gay Rights in American Communities,” pp. 1152-1178. 55 State of Oregon, “Voter’s Pamphlet. Measure No. 9,” p. 94. 56 ACLU of Oregon, “Litigation Information Sheet.” 57 Kidd, “City officials put gay issue on fall ballot.” 58 Associated Press, “OCA gets ready to take its battle to 1994 ballots.” 59 Nice, Policy Innovation in State Government; Rogers, Diffusion of Innovation; Schneider and Teske with Mintrom, Policy Entrepreneurs”; Godwin and Schroedel, “Policy Diffusion and Strategies for Promoting Policy Change,” pp. 760-776. 60 2010 Census Briefs, “Households and Families 2010.” 61 U.S. Census Bureau, “Profile of General Population and Housing Characteristics 2010.” 62 Ibid. 63 Pois, “Big Issue of Gay Rights Tears Apart Little Town of Canby.” 64 Nice, Policy Innovation in State Government; Rogers, Diffusion of Innovation; Schneider and Teske with Mintrom, Policy Entrepreneurs” Godwin and Schroedel, “Policy Diffusion and Strategies for Promoting Policy Change,” pp. 760-776. 65 King, Jr., “Letter from a Birmingham Jail.” 66 Murphy, “San Francisco Mayor Exults in Move on Gay Marriage.”

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67 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 220. 68 Lockyer v. City & County of San Francisco. 69 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 221. 70 Li v. State of Oregon. 71 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 222. 72 Ibid., p. 244. 73 Ibid., p. 251. 74 Ibid., pp. 219-220. 75 N.Y. Slip Op. 7887, WL 2778903, *4. 76 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 227. 77 Shipan and Volden, “Bottom-Up Federalism,” p. 828. 78 Parlow, “Progressive Policy-Making on the Local Level,” p. 385. 79 Kubasek, Glass, and Cook, “Amending the Defense of Marriage Act,” p. 959. 80 Ibid., p. 962. 81 National Center for Lesbian Rights, “Marriage Domestic Partnerships, and Civil Unions.” 82 Schragger, “Can Strong Mayors? p. 2577. 83 Ibid., p. 2565. 84 Ibid., p. 2566. 85 Ibid., p. 2573. 86 Williams and Adrian, Four Cities, p. 192. 87 Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” p. 505. 88 Hambleton and Gross, “Local Management in a Global Era,” p. 14. 89 Ibid. 90 Abrahamson, Global Cities, p. 37. 91 Taylor, Kimport, van Dyke, and Anderson, “Culture and Mobilization,” p. 871. 92 Schragger, “The Progressive City,” p. 45. 93 Rosin, “Barney Frank, Throwing Cold Water Instead of Rice.” 94 Spradley, “Congressman Barney Frank on LGBT Youth and Being Openly Gay in Congress.” 95 Egan and Sherrill, “Marriage and the Shifting Priorities of a New Generation of Lesbians and Gays,” p. 229. 96 Kendell, “The Right to Marry and the San Francisco Experience,” pp. 3344. 97 Ibid., p. 37. 98 Egan and Sherrill, “Marriage and the Shifting Priorities of a New Generation of Lesbians and Gays,” p. 229. 99 Ibid. 100 Ibid. 101 Ibid. 102 National Conference of State Legislatures, “Defining Marriage: Defense of Marriage Acts and Same-Sex Marriage Laws.” 103 Editorial, “The Defense of Marriage Act, Exposed.”

Lesbian, Gay, Bisexual, and Transgender Rights Activism

104

145

Ibid. Lisotta, “Gay Marriage’s Secret Weapons.” 106 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 227. 107 Schattschneider, The Semi-Sovereign People, p. 3. 108 Pew Research Center, “Two-Thirds of Democrats Now Support Gay Marriage.” 109 DiCamillo and Field, “Big Increase in California Voters Who Favor Allowing Same-Sex Marriage. Six in Ten (59%) Now Approve.” 110 Tepperman-Gelfant, “Constitutional Conscience, Constitutional Capacity,” p. 227. 111 Shipan and Volden, “Bottom-Up Federalism,” pp. 825-843. 112 Tilly, From Mobilization to Revolution. 105

7 Immigration Activism

Responding to a lack of comprehensive policy reform at the national level and increasing pressure from constituents to “do something,” state and local leaders have addressed illegal immigration in a variety of ways.1 In 2007, state lawmakers introduced over 1,500 immigrationrelated bills, a three-fold increase from 2006’s introductions. Two hundred and forty were passed into law. The trend continued with 1,305 bills considered and 206 enacted in 2008, and over 1,500 considered and 222 enacted in 2009. By the end of June 2010, forty-four states had enacted 191 immigration-related laws after considering nearly 1,400.2 Local ordinances pertaining to illegal immigration peaked in 2007, as well. In the twenty years leading up to 2007, local governments, unable or unwilling to wait for immigration reform, acted on their own. Background

For the first century of the new nation, matters of immigration were largely left to state and local governments. It was not until the end of the nineteenth century that the national government’s plenary authority over immigration and naturalization was decided by the Supreme Court. In Chae Chan Ping v. United States (1889), the Supreme Court determined, among other things, that the U.S. had the right to exclude noncitizens and that state and local governments had no authority to act in the foreign policy arena: The nation should speak with one voice, and that voice should be that of the national government.3 Throughout the twentieth century, the foreign policy power of the federal government pertaining to immigration was tested and upheld by the courts. A recent case, for example, involved California’s Proposition 187 (1994). Arguing that state and local budgets were overly strained by service provision to undocumented immigrants, the initiative was intended to prevent the undocumented from accessing a variety of social

147

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services including health care, K-12, and higher education. In addition, local law enforcement would be required to cooperate with federal agencies in the enforcement of immigration law. It was believed that the proposition would save the state $100-$200 million per year.4 Sometimes referred to as the “Save our State” initiative, Prop. 187 was approved by voters in all but eight San Francisco area counties.5 Within days, a federal district judge issued an injunction to bar its implementation. In the lawsuit that arose, League of United Latin American Citizens (LULAC) v. Wilson (1995), a U.S. District Court overturned most of the initiative’s enforcement procedures, citing the federal government’s plenary power and the lack of state and local qualifications to determine immigration status.6 Despite judicial support for federal authority pertaining to immigration, since 2001, some local leaders, like some state leaders, have taken on illegal immigration in one of two ways: by offering inclusive protections for illegal immigrants in their jurisdictions, or by imposing punitive restrictions on city employees, local businesses, and landlords. Greater protections most commonly involve some form of “sanctuary” involving a “don’t ask” and/or “don’t tell” policy. The most common type of sanctuary, for example, is the prohibition of city employees—including police—from ascertaining (don’t ask), and in some cases reporting one’s immigration status to the federal government (don’t tell). Tighter restrictions, on the other hand, have included the denial of services to illegal immigrants, fining landlords who rent to illegal immigrants, and fining and/or revoking licenses from business owners who hire illegal workers. Punitive Activism

We turn to Hazleton, Pennsylvania, and its anti-immigration ordinances of 2006, for an example of punitive activism.7 This was the first case of local punitive activism in the U.S. Important to the case at hand is Congress’ 1986 preemption of imposition of criminal or civil sanctions upon employers of unauthorized workers by state and local governments. From that preemption, Congress excluded “licensing and similar laws” pertaining to employment.8 This exclusion is the authority gap that Hazleton chose to exploit in its 2006 act of rebellion. Hazleton’s ordinances were controversial because they challenged federal authority, but also for their content. They declared English to be Hazleton’s official language, landlords became subject to daily fines if caught renting to illegal immigrants, and businesses found employing undocumented workers faced up to five-year suspensions of their

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licenses. Hazleton’s mayor, Louis Barletta, claimed to speak for America’s small cities, blaming his and other cities’ shifting culture, budget shortfalls, increased criminal activity, and burdensome new service demands on illegal immigrants. He also blamed Washington: “If the federal government did its job, nobody would have heard of Lou Barletta.”9 These harsh policies stood in contrast to Hazleton’s recent economic development efforts. Recent increases in the immigrant population (documented and undocumented) were largely caused by changes to the local economic development strategy, spearheaded by CAN DO,10 the community development corporation serving the Hazleton and Northern Pennsylvania area.11 Encouraged by state incentives (no taxes in locallydefined “opportunity” zones) and pressured by the increasingly competitive regional economy, CAN DO aggressively sought to attract major industries throughout the 1980s, ultimately winning, among others, a Cargill Solutions meat processing plant that promised to bring the region up to 700 jobs.12 Although the firm was known to “hir[e] undocumented workers and treat[] them inhumanely,” Hazleton’s high unemployment rate and scarce bounce-back prospects made Cargill appear to be a win for the region. The plant opened in the early 2000s and, between 2000 and 2010, Hazleton’s Hispanic population rose from 5 percent to 37 percent of the total population. How many of these people were actually undocumented is unknown. Regardless, the new Hispanic population resulted in a demographic shift that changed the character of the small town and local taxes rapidly rose. Locals reported a 60 percent increase in emergency room visits, much of which went unpaid; a 25 percent increase in school enrollment; and English as a second language programming rocketed from $500 per year to nearly $875,000.13 There was little attempt to distinguish these expenses among the documented and undocumented. In addition, crime rates rose in the city and quickly became racialized. In May 2006, a murder involving suspects with false identification papers tipped the tolerance scale. Referring to the suspect, Louis Barletta claims, “It took us nine hours of overtime just to run down who he was.”14 Barletta reacted with a strict local immigration control policy, stating “…I will get rid of the illegal people. It’s that simple: They must leave.”15 The mayor’s 2006 anti-immigration ordinances brought Hazleton national attention as the “toughest city in America for illegal aliens.”16 But these ordinances were more than just local policy. As one commentator noted, the city had launched a “constitutional challenge to the supremacy of Congress to write laws governing immigration

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policy.”17 Immediately following the passage of Hazleton’s ordinances, a federal judge enjoined their enforcement pending trial. That trial resulted in a 2007 defeat for Hazleton. Its ordinances were deemed preempted by the federal Immigration Control and Reform Act (Lozano v. City of Hazleton, 496 F. Supp. 2d 477): U.S. District Judge James Munley ruled the measures unconstitutional. He said immigration policies are a federal, not local, responsibility and that the ordinances don’t give employers, workers, landlords and tenants an adequate chance to defend themselves…The ruling doesn’t address other communities’ ordinances, but some immigration experts believe it sets a precedent they can’t ignore.18

Hazleton’s defense turned on the exclusion of “licensing and similar laws” from federal preemption of state and local sanctions against employers of unauthorized workers. While this exclusion was found in the 1986 Immigration Reform and Control Act (IRCA), Congress had acted again in 1996. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) “constituted a major change in U.S. immigration law….by expan[ding] federal power in the area of immigration regulation” such that permissible state and local regulation of licenses related to employment was no longer certain.19 In addition, the suspension or revocation of business licenses for employing undocumented workers is quite arguably an employer sanction, not a simple local licensing task that Congress sought to protect. Thus, with the ACLU’s help, Hazleton’s ordinances were tested and found unconstitutional, a decision eventually affirmed by the Third Circuit.20 Despite Hazelton’s legal battle, the ACLU reports that in the year following the adoption of Hazleton’s ordinances, over 100 localities introduced similar ordinances.21 According to Michael Sandler, “Hazleton’s action marked a turning point for local officials all over the United States…(C)ity halls….reacted almost overnight.”22 By 2010, there were at least 59 cases of punitive local immigration activism. These localities often used Hazleton’s ordinances as blueprints, “imposing conditions on employers and landlords, (and) address(ing) a number of local policy concerns, including health identification, driver’s licenses, law enforcement and human trafficking.”23 The geographic distribution of these punitive policies is demonstrated in Figure 7.1.

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Inclusive Activism

The shorthand, sanctuary city, is used for those localities that have passed resolutions, ordinances, or executive orders to both ensure and assure undocumented immigrants within their jurisdictions that they will not be reported to federal authorities. Some of today’s local policies are continuations of the early sanctuary movement of the 1980s (to be discussed in Chapter Eight). Cities participating in the early sanctuary movement sought to protect Salvadoran and Guatemalan refugees by offering asylum. Congress responded to these efforts by passing the 1996 IIRIRA which forbade “[s]tates and localities (from adopting) policies, formally or informally, that prohibit employees from communicating with DHS [Department of Homeland Security] regarding the immigration status of individuals.”24 With the IIRIRA, “Congress intended to nullify the sanctuary policies. Acknowledging that ‘various localities have enacted laws preventing local officials from disclosing the immigration status of individuals to the INS,’ the legislative history of section 434 expressed the intent to preempt sanctuary laws and open communication between local governments and federal immigration authorities.”25 This law was passed toward the end of the 1980s sanctuary movement, so it had little immediate impact. Those that were still offering sanctuary in 1996 typically ignored the law, as do those that offer sanctuary today. Figure 7.1: Geographic Distribution of Punitive Immigration Activism

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Today’s localities that offer sanctuary do so for a variety of reasons: “Sanctuary proponents argue that… fear (of being deported) deters witnesses from reporting crimes, undermines public health campaigns to control the spread of communicable diseases, and forces illegal aliens to live in an underground society that undermines government.”26 Other localities, disturbed by the post-9/11 immigration and policing policies in the U.S., offer sanctuary in order to prevent their Hispanic population from fleeing and/or to prevent public officials from participating in what is considered overly-harsh policies. “From broadest to most specific, the types of substantive provisions [common to local sanctuary policies] are: no discrimination based on citizenship status, no enforcement of immigration laws, no enforcement of civil immigration laws, no inquiry about citizenship status, and no notifying federal immigration authorities.”27 We turn to Takoma Park, MD, for an example of a sanctuary city. Takoma Park first became a “City of Refuge”28 as a participant in the earlier sanctuary movement in 1985. In October 2007, the city council voted to reaffirm their ordinance which prohibits local cooperation “with federal immigration authorities in the enforcement of civil and criminal immigrations laws and prohibits City employees from requesting or disclosing information regarding the immigration status of individuals…”29 In its ordinance, the city council cites its regard for diversity, the poor conditions of other nation-states that necessitate flight, and the need to maintain trust between officials and residents to protect the entire community’s “health, safety, and welfare.”30 The council further notes that they believe it is their duty to “guarantee certain due process and equal protection rights to all residents of the United States regardless of citizenship or immigration status” under the Fifth and Fourteenth Amendments of the U.S. Constitution. Takoma Park’s council voted unanimously to reaffirm their ordinance (2007), continuing their rather long history as an activist locality. In addition to providing sanctuary in the 1980s, Takoma Park is a nuclear-free zone, a divestment city, supportive of same-sex rights, and, in 2002, the city cited the Declaration of Independence, and the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as the Maryland Constitution, when it resolved to refuse cooperation with the USA Patriot Act.31 The city voted to impeach President George W. Bush and Vice President Dick Cheney in 2007, joining an estimated 80-city movement.32 Finally, in 1992, council members voted to allow “residents who are not U.S. citizens to vote in municipal elections,”33 as well as hold public office. The city has activist roots; Sam Abbott, the civil rights activist, was mayor of Takoma Park in the late 1960s.

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Presumably, his influence and the community’s receptivity to progressive policymaking led to the city’s moniker, “The Berkeley of the East.”34 The extent to which inclusive local policy activism has occurred among U.S. cities varies by source. In 2005, before immigration policies peaked at the state and local levels, the Congressional Research Service reported that sanctuary policies existed in 32 cities and counties across the country.35 As of March 2009, the Ohio Jobs and Justice PAC (OJJPAC) reported 118 cities or counties with sanctuary policies (which include all types: resolutions, ordinances, executive orders, and departmental orders or policies) and another five in states where sanctuary policies are state supported. It should be noted that the OJJPAC has an anti-illegal immigration agenda; however, its list of sanctuary cities is widely used by the media and others, and allows for transparent refutation by misclassified cities. Those cities disputing their sanctuary status with the OJJPAC are not included in this study. The National Immigration and Law Center lists about 85 ordinances, resolutions, and departmental policies in 23 states that limit enforcement of immigration laws by local authorities. My research, which crossreferenced all of these sources in addition to the aforementioned LexisNexis major U.S. newspapers and other news sources, revealed 162 localities with some type of sanctuary. Frequently, these were passed in defiance of not only federal authority, but state authority, as well. The geographic distribution of these cases is represented in Figure 7.2. Survey of Immigrant-Related Activism

Local activism related to immigration has surged in recent years. We limit our focus to the activism of the late 1990s to 2010 here, reserving the 1980s movement for the next chapter. As indicated in Table 7.1, there is a rather strong regional aspect to this activism. Those in the Middle Atlantic, Mountain, and Pacific census divisions were particularly active in inclusive activism; California, Oregon, and Colorado were most active. Those in the Middle Atlantic, South Atlantic and, again, the Pacific were especially involved in punitive activism. North Carolina and Virginia dominated the punitive category, with Pennsylvania active in the upper East coast and California showing punitive activity in the West. The least active census divisions were West North Central and East South Central.

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Figure 7.2: Geographic Distribution of Supportive Immigration Activism

Several demographic characteristics provide a rough sketch of these activist localities in comparison to one another (inclusive and punitive), as well as to other municipalities in the United States. Included in the U.S. category are locations with populations of 2,500 and greater. As demonstrated in Table 7.2, both supportive and punitive localities are much larger than the national average and their populations grew faster than the nation’s municipalities in the 2000-2010 period. In addition, it appears that inclusive localities are more than three times larger than punitive localities, perhaps reflecting an already diverse population, tolerance for differences, and the desire to preserve communication ties with their Hispanic population. The population in inclusive localities grew more slowly from 2000 to 2010 than the population in punitive localities. Indeed, punitive localities grew at around five times the rate of other, non-activist municipalities in the U.S. Regarding the distribution of race within the populations, the White population in both inclusive and punitive localities declined in the 10year period, as did the White population in the non-activist U.S. municipalities. In inclusive localities, the decline in White population was slightly less than the rest of the nation’s municipalities. In punitive localities, the decline in the White population was nearly twice as great with a -7.8 percent change versus -3.6 percent for the nation’s nonactivist municipalities. The Black population declined in inclusive localities by 3.45 percent, while growing for the nation’s municipalities overall by 2.44 percent. In punitive localities, the percentage of the

1

Table 7.1 Distribution of Immigration Activism by Census Division New England Inclusive

11 6.8%

Middle Atlantic 25 15.4%

East N. Central 14 8.6%

West N. Central 6 3.7%

South Atlantic

East S. Central

West S. Central

Mountain

22 13.6%

0 0%

18 11.1%

25 15.4%

Pacific 41 25.3%

Totals 162 100%

155

1 10 3 1 20 7 5 3 9 59 1.7% 16.9% 5.1% 1.7% 33.9% 11.9% 8.5% 5.1% 15.3% 100% Percentages are rounded. 1 U.S. Census Bureau. Census Regions and Divisions of the United States. New England: CT, ME, MA, NH, RI, VT; Middle Atlantic: NJ, NY, PA; East N. Central: IN, IL, MI, OH, WI; West N. Central: IO, KS, MN, MO, NE, ND, SD; South Atlantic: DE, DC, FL, GA, MD, NC, SC, VA, WV; East S. Central: AL, KY, MS, TN; West S. Central: AR, LA, OK, TX; Mountain: AZ, CO, ID, NM, MT, UT, NV, WY; Pacific: AK, CA, HI, OR, WA. Punitive

Table 7.2 Characteristics Comparison of Local Immigration Activism with U.S. Municipalities Inclusive

156

Mean Population of 1 Jurisdictions White – Average % of 1 Population Black – Average % of 1 Population Hispanic – Average 1 % of Population Median Household 2 Income Mean Percent Population Below 2 Poverty Line Mean Percent with Bachelor’s Degree or 3 Higher 1

2000

2010

288,617 (77,423)

309,389 (84,402)

63.7

Punitive % Change

United States % Change

2000

2010

7.2

54,419 (27,508)

60,088 (31,729)

10.42

62.2

-2.35

78.2

72.1

-7.8

14.5

14

-3.45

8

9.8

26.4

28.8

9.09

14

$39,629

$49,152

24

15.69

16.83

27.77

30.97

2000

% Change

2010 5

2.79

75.1

72.4

-3.6

22.5

12.3

12.6

2.44

20.8

48.57

12.5

16.3

30.4

$38,820

$50,066

28.97

$41,994

$50,046

19.17

7.27

12

14.64

22

12.4

15.3

23.39

11.52

19.59

22.49

14.8

24.4

28.2

15.57

7,016

4

7,212

Median Age 31.9 33.5 5.02 34.8 36.1 3.74 35.3 37.2 5.38 1 2000 and 2010 Census Bureau. General Demographic Characteristics. 2 2000 and 2010 Census Bureau Selected Economic Characteristics. 3 2000 and 2010 Census Bureau Selected Social Characteristics. 4 1997 Census Bureau Government Organization, Census of Governments vol. 1, no. 1. Mean population of all subcounty general purpose governments with populations of 2,500+. 5 2002 Census Bureau Government Organization, Census of Governments vol. 1, no. 1. Mean population of all subcounty general purpose governments with populations of 2,500+.

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Black local population grew by 22.5 percent, from 8 to 9.8 percent of the overall population. Changes in the Hispanic population are of particular interest as previous studies have linked rapid growth in the Hispanic population to punitive policy-making.36 In the larger, inclusive localities, it appears that the Hispanic population grew by a little more than ten percent while the nation’s municipalities experienced 30.4 percent Hispanic growth during the decade, perhaps reflecting the Hispanic population’s recent shift away from larger gateway cities.37 In punitive localities, however, the Hispanic population grew much more rapidly, by nearly 49 percent from 2000 to 2010, and assumed a greater percentage of the local population in 2010—21 percent on average—than the national municipal average of 16.3 percent. The higher rate of population growth in these areas suggests that punitive local policies may sometimes be enacted in reaction to rapid and highly visible changes in these moderate-sized jurisdictions. Other characteristics of activist localities suggest that inclusive localities have slightly lower median household incomes than punitive or non-activist localities; higher, but more slowly growing, poverty rates; slightly higher educational attainment, and lower median ages. Punitive localities appear to be close to the national mean household income—although incomes in punitive localities are growing more rapidly than in the nation’s non-activist localities. Also similar to inclusive localities are the national and punitive localities’ poverty rates and median ages. Finally, punitive localities have a lower educational attainment rate than the nation’s non-activist municipalities at 22.5 percent (25 years and older, bachelor’s degree or higher in 2010) versus the nation’s 28.2 percent (in 2010). Discussion

While researching this topic, several issues and concerns recurred. These are offered here for discussion. The rate and reasons for recent immigration, federal abdication of immigration policy, local needs, and local leaders’ motives for acting on immigration issues are surveyed. In addition, the public education function of local activism is surveyed as is the potential for local immigration activism to cause various harms.

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Recent Immigration Immigration has done more to shape the physical and social landscape of many of America’s largest cities than almost any other economic or cultural force.38 Nearly everyone in our country agrees that our immigration system is broken.39

Changes to immigration laws in 1990 brought great diversity to cities “with the highest percentage of European-origin groups (allowed) into the country since the 1965 Hart-Cellar” Act40 (the Immigration and Naturalization Act). The Hart-Cellar Act repealed nationality-based quotas that had been in place since the 1924 National Origins Immigration Act. The immigrant surge that followed rivaled the numbers of the nineteenth and early twentieth centuries, with Asians and Latin Americans increasingly settling into new areas of the country and the suburbs. Spurring the inflow of undocumented immigrants in the 1990s was the strength of the U.S. economy and the 1994 North American Free Trade Agreement (NAFTA). NAFTA liberalized the trade policies between Canada, Mexico, and the U.S., disadvantaging rural farmers in Mexico and Latin America. Competing with large-scale producers in the U.S. and Canada, these farmers soon found that they could no longer “make a living on the land, and migration—either domestic (rural-tourban) or international—quickly became one of their few viable livelihood options.41 Today, more than an estimated 12 million undocumented persons, mostly from Mexico, reside in the U.S.42 Those who immigrate tend to settle where those of shared nationality are already congregated. For so long, the nation’s “gateway” cities—Chicago, Houston, and Los Angeles, for instance—were immigrant destinations. Recently, however, immigrants have begun to move into the heartland and smaller communities. These places are typically unfamiliar with foreign populations and cultures, and have few resources to cope with the service and infrastructure upgrades necessary to accommodate a rapidly growing population. Managing the resulting tension between traditional and non-traditional populations is one of the great challenges to local governance today. As new groups move into traditionally homogenous areas, local leaders are pressed to accommodate often conflicting needs and desires. Monica Varsanyi reports that “Between 1990 and 2000, the Mexican-origin population in the states of New York, Pennsylvania,

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Washington, and Wisconsin increased by 200 to 400 percent, in Utah by 645 percent, in Arkansas and Minnesota by 1,000 percent, and in North Carolina, Tennessee, and Alabama by over 1,800 percent.”43 These increases did not necessarily result in “a large absolute increase in the number of immigrants from Mexico”;44 nevertheless, increases were transformational to local cultures and economies. Note that this settlement pattern was interrupted by the 2008 economic downturn; since that time, the majority of immigrants have opted to remain in cities where jobs are more available. The economic downturn also brought a decline in both legal and illegal entries due to reduced employment opportunities in construction and services. With economic recovery, the previous trend of suburban and rural diversification is expected to continue.45 Federal Abdication Because of the absence of the feds doing anything, there’s a lot of financial, cultural, political strains that are occurring [in cities and states]… They are just starting to act on their own. 46 - Gregory Minchak, National League of Cities

Among the nation’s hot button issues, immigration is at the top of the list. We tend to agree that the system is broken, but not how to fix it. We can look to the 1996 immigration laws—the Antiterrorism and Effective Death Penalty Act (AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)—as a springboard for the current immigration debate. This is not to say that immigration reform was not discussed before 1996; indeed, immigration has been on the public agenda since the nation was founded. The 1996 laws, however, were different from others since World War II in that they …reflected the political climate at that time: Get tough on immigrants, stop illegal immigration, and blame immigrants for criminal and welfare problems. Among other things, the 1996 laws penalized persons who entered illegally and remained in the country, provided for retroactive deportation for relatively minor criminal offenses committed years before the passage of the law, further curtailed waivers from deportation and judicial review, mandated detention of immigrants during their deportation proceedings, and limited immigrants’ access to public benefits.47

The harshness of the 1996 laws led immigrant-friendly groups to mobilize and demand reform. These efforts included enlisting the media.

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For example, “The news media began to report stories of long term permanent residents who had immigrated to the U.S. as small children and who were deported to countries where they had no family or cultural ties and did not speak the language.”48 Media coverage, along with the decade’s immigrant population increase, exposed traditional citizens to immigrants in such a way that distant national immigration policy was brought closer to home—humanized. Reform efforts to protect the rights of undocumented immigrants seemed to be gaining traction in the late 1990s, but this would end with the terrorist attacks of September 11, 2001. A fearful public provided space for the reactionary USA Patriot Act which “expanded the government’s ability to detain and deport suspected terrorists, greatly increased the budget for immigration enforcement, and tripled the number of U.S. Border Patrol on the northern border.”49 This Act was followed by the Real I.D. Act in 2005, which restricted undocumented immigrants’ “access to driver’s licenses, judicial review, and asylum.”50 For the undocumented, the net result of these laws is that entry into the U.S. poses greater risk than before 9/11. Moreover, those already in the U.S. often opt to stay, fearing that if they leave, they may not be able to return. National dominance over immigration policy remains, despite Congress’ incapacity to enforce or reform existing immigration laws. The 1996 IIRIRA attempted to strengthen the enforcement of immigration policy by providing opportunities for local police to partner with federal officials. This partnership involved federal-local training in immigration control with the expectation that trained police departments will exercise their arrest authority in cooperation with federal immigration officers. Until 2001, however, no local authorities had cooperated with the federal government in this way,51 hindering national efforts to enforce immigration policy. The national government is unable to “commandeer,” or force, state and local governments to use their resources to accomplish national purposes. Even those who agree with national policy resist using local resources to accomplish federal purposes, and this is particularly so in areas where federal policy is mismatched with local needs or desires. Remember, too, that a federal-local partnership that confers local immigration authority is not a true devolution of power. True devolution of immigration authority would permit localities to pass laws and regulations that reflect the conditions with which they are faced. Thus, those participating under the 1996 arrangement become the national government’s agents. Some local leaders, frustrated with Congress’s

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inability to pass immigration reform despite over a decade of demands, have taken matters into their own hands. Regardless of type of ordinance, whether inclusive or punitive in nature, challenges to their legality remain. Although the U.S. Constitution’s Supremacy Clause should settle any contest, recent court decisions have sent mixed signals to local officials. These cases, for example, have centered on fears that a city identification card policy would lead to an influx of illegal immigrants (dismissed);52 victim’s claims that city sanctuary policies contributed to some personal harm (dismissed);53 and the penalization of businesses found to employ undocumented immigrants and landlords renting the undocumented (upheld),54 while similar ordinances, such as Hazleton’s, have been challenged and found preempted.55 With little consistency in the courts, it seems inevitable that local leaders will continue to assert themselves. Until a uniform and comprehensive national immigration policy is passed, local leaders will likely continue to adopt patchwork ordinances to meet local needs and signal Washington for change. Marketing and Visibility If the crisis of cities in the mid-twentieth century demonstrated anything, it was that the long-term health and viability of any cityregion depends on its ability to adapt, reorient, and sometimes wholly reinvent itself.56 …[E]ven the most successful cities seem to realize the importance of keeping an eye on alternative futures.57

The image that a locality wants to project may inform its immigration policy approach. Some localities, for example, market themselves as unfriendly to immigrants in order to prevent or recover from the perception that they are an immigrant community. Said Escondido, California, Councilman Ed Gallo: “If you are not here legally, you don’t belong here….We’re talking about image and appearance. . . We are trying to change the image of Escondido.”58 Believing that the perception that an area is an immigrant destination may have the negative effect of repelling residents and capital investment, local leaders may choose activism as a tool to signal outsiders that they are still viable economic competitors. Whether a locality wants to be the “toughest city” on illegal immigrants, or simply wants to quiet the perception that it is an immigrant destination, activism

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may be used to market the city in hopes of attracting or retaining “high value”59 residents and businesses. Supportive communities, on the other hand, may attempt to keep their immigrant population by giving them credit for supporting the local economy. Chicago, IL, for example, has been a sanctuary city since Mayor Harold Washington issued an executive order to that effect in 1985. Since then, Chicago’s mayors have consistently supported the city’s sanctuary policy. Rahm Emanuel, the current mayor of Chicago, recently announced on the city’s webpage the creation of the Office of New Americans, charged with “improving services and engaging Chicago’s global immigrant communities through enhanced collaboration with community organizations, educational institutions and the private sector.” Says Emanuel: Chicago’s vitality has been built on the strength of immigrant populations that have come to enjoy new freedoms and access new opportunities… I want to make Chicago the most immigrant-friendly city in the world and the Office of New Americans will ensure every law-abiding Chicagoan has access to the resources they need to become productive members of society and contribute to our thriving global city.60

The incorporation of immigration policy into the economic development strategy is intentional. For example, “Rust Belt cities like Cleveland, Pittsburgh, and Detroit have raised the prospect of immigration as an urban revitalization strategy.”61These approaches reflect the local desire to compete in the new global economy. Attracting and retaining immigrants may provide the necessary workforce for knowledge- and service-based economic growth, but it also may create “diversity, vibrancy, and cosmopolitanism…an amenity sought out by individuals who can contribute to the city in other ways. Similarly, the ability of a city to manage immigration may serve as a signaling function of its tolerance to other groups it may wish to attract…”62 Educating the Public As urban scholars suggest…not only may…cultural capacity be more malleable than commonly assumed, but it might also be a direct result of how urban policies have organized our communities and structured personal relations. It is not just how infrastructure decisions are made or how local economic politics are fashioned, as important as these are. It is also how urban policies shape our cultural attitudes about

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diversify and our ability to manage and resolve conflict as a community.63

Local immigration policy, for better or worse, has the potential to inform and shape the public’s perception of immigration and immigrants. It may be to a locality’s advantage to begin its public education campaign early and intentionally, particularly if it appears destined to attract a sizeable Latino community. Owen Furuseth and Heather Smith describe the phases of Charlotte, North Carolina’s, assimilation of immigrants.64 Their typology is easily transferrable to Hazleton, PA, as well as others, and is offered here to demonstrate the potential for governmental function or failure in the process of immigrant assimilation. During Phase I which occurred during the early 1980s to early 1990s—a phase which the authors call “Welcome amigos”—Charlotte experienced an economic boom centered on financial services. This boom attracted immigrants to work in supportive industries, mostly building and industrial. Their numbers were small. The 1990 census showed the Hispanic population in Charlotte to be 5,571.65During Phase II, however, from the mid-1990s to 2000, the immigrant population rapidly grew. The 2000 census reported Charlotte’s Hispanic population to be 39,800.66 Much of this growth is attributed to construction of the Bank of America headquarters, a project managed out of Houston, Texas. The laborers that first came to Charlotte soon sent word to family and friends, informing them of the jobs available in the area. Soon, “the first substantive link in the Charlotte-Mecklenburg migration chain” had formed.67 Furuseth and Smith refer to Charlotte’s post 2001 Phase III as the “Honk if you hate Spanish” phase. The 2000 Census reported 39,800 Hispanics in Charlotte as well as another 44,871 in Meckelenburg County, the county within which Charlotte is located. These numbers continued to grow throughout the early 2000s as the construction and service industries continued to supply ample work opportunities to newcomers. “By 2004, the economic impact of Latinos on the Charlotte metropolitan region was estimated to be $1.9 billion and included the creation of 16,900 new jobs.”68 For traditional residents, however, messages of crime and rising service costs dominated, fed by racism and partisan politics at the state level. The more visible the immigrant population became, the more focused the efforts to rid the area of them with city and county conservatives eventually backing anti-immigrant measures.69

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The exception to local immigrant backlash came from the corporate sector. While local and state governments were working to remove undocumented immigrants, the Charlotte Chamber of Commerce and its major “financial institutions—notably Bank of America and Wachovia—have aggressively marketed products and services to the Latino community and appointed Hispanic professionals to highly visible leadership positions at the local level.”70 Furuseth and Smith identify this behavior as economic strategy, a way of indicating “the corporate community’s unwillingness to endorse…anti-immigrant themes” suggesting a growing awareness that Charlotte-Mecklenburg’s future competitiveness is linked to internationalization of the workforce and success in national and global markets. Nativist political trends and the accompanying policy directions are counterintuitive to economic growth and directly erode the city’s personality as a New South city with a promising and lucrative globalized future.71

This development reflects the resistance of the population and local leadership to their new diversity, despite it being in their best economic interest to move toward inclusion and tolerance. While it is little surprise that business leaders would recognize the importance of projecting the right image, it is very surprising that they have been unable to convince local and state leaders of the same. Phase IV is where Charlotte finds itself today, at “The Immigration Crossroads.” Anti-immigrant rhetoric and policies are an increasing part of the landscape, even though it has become clear that the Hispanic population (now numbering 95,688 in Charlotte alone) is there to stay. 72 Of course, not all residents, leaders, and service providers take to the anti-immigrant stance; however, hostility is sufficient to affect the way that the Hispanic community relates to and engages with the larger community. “In many ways, Charlotte-Mecklenburg’s immigrant advocates and Latino newcomers seem to be waiting to see which path political, business, and community leadership will follow.”73 And this is the point: it is up to leadership to pick a path and to educate the population, perhaps using the examples set by their corporate community to bridge the divide among citizens. Local leaders have the capacity to enhance or suppress tolerance, allowing for communities to develop the “cultural capacity to adapt and reach out.”74 Charlotte’s leaders, and so many others, are failing in this regard.

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Local Needs and Responsiveness I hope it comes out very clearly that Takoma Park is going in the opposite direction as some of these other communities.75 [These]…people are here illegally, not paying taxes, using city resources, and I’ve just had enough of it.76

Immigration is now a feature in cities of all sizes. Rapid change challenges local residents and leaders to reconsider community identities, as well as their perceptions of immigration and immigrants, generally. The dynamics of traditional neighborhoods, schools, churches, and streets have been transformed in ways that seem threatening to some, particularly in areas where the immigrant population concentrates, creating highly visible and diverse urban communities. The southeast neighborhoods of Nashville, TN, for instance, have, since 2000, shifted “from owner-occupied to rented, from English to Spanish, from elderly white residents to young Latino families.”77 Nostalgia for neighborhoods past haunts traditional residents as they watch their community’s transformation. These traditional residents often call upon city leaders to preserve the aesthetics that they believe make their city feel like home. In response, local leaders must decide whether to resist new immigration, or seek to incorporate their immigrant population. What makes these leaders respond so differently to immigrants once they arrive? S. Karthick Ramakrishnan and Tom Wong have found that political factors—rather than demographic, economic, or cultural changes—appear to have the greatest effect on localities’ approach to immigration policy. City size is positively associated with both inclusive and punitive policies, yet political factors, such as demonstrations and partisan politics, appear to matter in determining whether a city leans toward inclusive or punitive policies.78 Jorge Chavez and Doris Povine point to political factors, as well, particularly in the case of punitive policymaking at the state level. These scholars found that legislation is likely to be inclusive in areas where there is an “already-established” group of Hispanics, “a growing foreign-born population, and a more liberal state government.”79 Kevin O’Neil finds that conservative political ideology in an area is “associated with higher risk of an antiimmigrant ordinance.” He also points to rapid growth in foreign-born in areas that are not accustomed to immigrants as likely to pass antiimmigrant ordinances.80

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Complicating this decision are new expenses that are often assigned to immigrants—documented or undocumented, responsible or not. The services required to meet the needs of the changing population range from English as a Second Language programs, greater zoning and codes enforcement, and mediation of neighborhood disputes, often among residents who do not speak the same language. Rising expenses are often cited by traditional residents when they press for local immigration reform. One Farmer’s Branch council member noted: The reason I got on to the city council was because I saw our property values declining or increasing at a level that was below the rate of inflation. When that happens, people move out of neighborhoods, and what I would call less desirable people move into the neighborhoods, people who don’t value education, people who don’t value taking care of their properties.81

As mentioned, the motive for Hazleton’s ordinances included rising local medical expenses, English as a second language programs, and the costs of increased police patrol. The perception that immigrants are responsible for the rising costs of local services has not been validated; however, it is citizen perception—not necessarily the reality—that often compels local leaders’ activism. Regardless of the politics behind immigration activism, it may be that the motives for attracting immigrants in the first place are held in common by both inclusive and punitive localities. According to Rick Su, “immigration is not just something that happens to cities or something to which cities must respond—each of which cast cities in a passive light.”82 Rather, local governments are active participants. Local economic development choices and marketing strategies intended to project the city as immigrant-friendly may draw immigrants into the jurisdiction. “Whereas one city may be interested in immigration as a means of recruiting specific professionals to advance a Global City or Creative City agenda (geared towards international finance and hightech innovation, respectively), another may be interested in immigration flows generally as a way to stabilize a population base or spur growth.”83 In other words, the position of a locality in its economic lifecycle likely underpins the motivation for attracting immigrants to a community.

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Potential Harms of Local Immigrant Activism Latino-owned markets, restaurants and clothing stores sprang up along Wyoming Street, and property values tripled. Hazleton’s population jumped from 23,000 to 31,000 in the past six years. 84

Harms to Immigrants Anti-immigrant activism is harmful to both immigrants and traditional residents. Facing anti-immigrant sentiments, immigrants often feel unwelcome in their communities, causing some to leave and lose important social networks. It is often the case that where intolerance for undocumented immigrants exists, documented immigrants also become subject to community backlash, racism, and experience personal fear.85 Lou Barletta’s punitive ordinances in Hazleton were framed with strong anti-immigrant rhetoric which he claims was intended only for the undocumented. His rhetoric was toxic: “I don’t want them here in Hazleton. They’re not wanted… The jobs most work are selling drugs. Many I am dealing with are not law-abiding citizens…”86 This message was repeated in the media and in public forums such that all immigrants became associated with the city’s problems and, thus, even legal immigrants quickly found themselves in an unfriendly place. The discrimination against immigrant groups follows a pattern. Karla McKanders writes: “First, states and localities pass anti-immigrant laws. Then, the laws reinforce the belief that immigrants do not belong, which authorizes citizen extra-legal activities against immigrants. This cycle will unquestionably prevent immigrants from ‘belonging,’ regardless of their actual legal status.”87 Unwelcome immigrants adapt their behavior accordingly by leaving, lashing out, or avoiding public officials entirely. Economic Harms The economic costs of local activism may affect inclusive localities, although it appears that punitive localities are much more likely to be affected. Expenses associated with court costs, lost business and residents, and personal costs to activist leaders have been reported. For example, Hazleton, Pennsylvania, is estimated to have spent between $2.8 and $5 million defending its ordinances. Farmers Branch, Texas, spent $4 million by 2008, and, nevertheless, continued its fight to the U.S. Supreme Court (2012). Fremont, Nebraska, planned an 18 percent tax increase and a budget of $750,000 to defend its punitive ordinance for one year. Their law was found unconstitutional in 2008. It was submitted to voters and passed again in 2010 only to be voided in 2012.88 Escondido, California, was in for almost $300,000 before

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withdrawing its anti-immigrant ordinance. “In an official statement, the city council said that defending the ordinance would have cost the city upwards of $1 million, in addition to potential plaintiff’s fee awards.”89 Tomball, Texas, and Summerville, South Carolina, tabled their antiimmigrant proposals after considering the financial costs to other cities. Says Summerville’s Town Councilman, Mike Dawson, “I just cannot with good conscience risk potentially spending millions in taxpayers’ dollars just to make a point.”90 In addition, the cost of implementing local anti-immigrant policies is not insignificant. At the state level, costs have been estimated at $5 million to $40 million per year.91 Local costs are more difficult to determine. In Virginia, however, “One county supervisor estimated the cost of implementation to be in the millions for just [that] county alone.”92 Other costs accrue through resident and business attrition. In Prince William County, Virginia, “County Supervisor Frank Principi, says, ““We had an exodus of thousands of Hispanics out of Prince William County. We have lost property tax revenues, we have lost sales tax revenues, and some income tax revenue. When the buying power leaves the community, small businesses close, foreclosures go up.”93 The State of Oklahoma passed an anti-immigrant law that “decimated the local workforce as immigrants, including some who were lawfully present, either fled or went into hiding. Stores catering to diverse immigrant communities saw their sales plummet.”94 Arizona is reputed to have angered their business base with its punitive employer sanctions. “Businesses were reported to be losing their workforce and customer base, moving operations outside the state, and holding off on expansion.”95 Riverside, California, reversed its anti-immigrant policy in 2007. Nevertheless, 45 percent of the town’s businesses closed when 75 percent of the town’s immigrants—legal and illegal—left.96 Harms to Local Leaders A number of local leaders have been ousted from their positions due to their activism or their activism’s associated costs to taxpayers. The New York Times reports that immigration activism cost Richard H. Hyde his position as mayor of Waukegan, IL. Upon learning of the mayor’s replacement, Joshua Hoyt of the Illinois Coalition for Immigrant and Refugee Rights declared, “Mayor Hyde was a national symbol of a strategy to scapegoat immigrants and harass them, using the local police and that is why he lost.”97 The mayor of Valley Park, Missouri, was replaced in 2008 “after two years of pushing for and defending antiimmigrant ordinances, costing the town an estimated $250,000 in legal fees. His challenger who won the race said that he would not support

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spending any more money to defend the measures in the courts.”98 The mayor of Farmers Branch, Texas, Bob Phelps, suffered personal anguish for opposing an anti-immigrant ordinance that was supported by the city council. Vandals attacked his home more than once, and federal agents suggested that Phelps leave town during the 2007 referendum wherein voters would decide the fate of the city’s ordinance. Said Phelps, “These last few months have been the worst time—I don’t know, maybe of my life.”99 Harms to National Policy Local activism that conflicts with national foreign policies sends signals to the undocumented who are considering entrance to the United States: Immigrants who perceive that localities are cooperating with the federal government may reconsider entry, while the presence of uncooperative localities may encourage them. National policy as written is harsh on illegal immigration, and local cooperation with federal authorities, whether symbolic or actual, raises the stakes of undocumented entrance and residence in the U.S. On the other hand, “sanctuary cities” confer legal status upon undocumented immigrants. In these localities, the undocumented are granted “formal or nominal membership in an organized political community”100 in clear opposition to national policy. Sanctuary policies in places such as Takoma Park, Maryland, and San Francisco, California, allow undocumented immigrants to be “viewed as ‘citizens’” making their “immigration status immaterial in some public interactions.”101 Conflicting messages undermine federal authority and the efficacy of national immigration policy. According to the “one voice” argument, states and localities should refrain from acting in any area of foreign policy in order to allow the nation to speak without ambiguity.102

Notes 1 Ferraiolo, “State policy innovation and the federalism implications of direct democracy,” p. 501. 2 National Council of State Legislators, “2010 Immigration-Related Laws and Resolutions in the States (January-June 2010).” 3 Varsanyi, Taking Local Control: Immigration Policy Activism in U.S. Cities and States in Varsanyi, ed., pp. 6-7. 4 Eig, “California’s Proposition 187: A Brief Overview.” 5 Staff writer, “Prop. 187 Approved in California,” Migration News. 6 Varsanyi, Taking Local Control, p. 2.

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7 I follow the ACLU and the media in using the term, “anti-immigrant,” when speaking of undocumented residents. 8 INA § 274A(h)(2), 8 U.S.C. § 1324a(h)(2) (“The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”) 9 Sandler, “Immigration: From the Capitol to the Courts,” p. 3648. 10 Fleury-Stiner and Longazel, “Neoliberalism, Community Development, and Anti-Immigrant Backlash in Hazleton, Pennsylvania,” in Varsanyi, ed. Taking Local Control, pp. 159-169. 11 Greater Hazleton CAN DO. 12 Fleury-Stiner and Longazel, “Neoliberalism, Community Development, and Anti-Immigrant Backlash in Hazleton, Pennsylvania,” in Varsanyi, ed. Taking Local Control, p. 167. 13 Kroft, “Welcome to Hazelton.” 14 Ibid. 15 Ibid. 16 Sandler, “Immigration: From the Capitol to the Courts,” p. 3648. 17 Ibid. 18 Bazar, “PA town’s illegal immigrant law tossed.” 19 Ibid., pp. 397-398. 20 The U.S. Supreme Court agreed to review the Third Circuit’s ruling and, surprisingly, on June 6, 2011, the Court ordered the Third Circuit to reconsider Hazleton’s ordinances in light of its own recent opinion supporting similar laws in Arizona (City of Hazleton, PA v. Lozano). 21 Bazar, “PA town’s illegal immigrant law tossed.” 22 Sandler, “Immigration: From the Capitol to the Courts,” p. 3648. 23 Ibid. 24 In response, New York City sued the U.S. citing violations of the Tenth Amendment and that the law exceeded Congress’ power over immigration. The suit was rejected. A federal district court found that the city had “no right to passive resistance.” NYC appealed and lost again in the Second Circuit Court of Appeals (1999). A petition for certiorari to the U.S. Supreme Court was rejected without comment in 2000. 25 Pham, “The Constitutional Right Not to Cooperate?” p. 1384. 26 Federation for American Immigration Reform (FAIR), “NonCooperation Policies.” 27 Pham, “The Constitutional Right Not to Cooperate?” p. 1389. 28 City of Takoma Park, Maryland, Ordinance no. 2007-58. 29 Ibid. 30 Ibid. 31 Ibid. 32 Bloomekatz, “West Hollywood Votes to Impeach Bush and Cheney.” 33 Hendrix, “Takoma Park Stays Immigrant ‘Sanctuary.’” 34 City of Takoma Park, Maryland, “Special Session Resolution 1.” 35 Luo, “A Closer Look at the ‘Sanctuary City’ Argument.” 36 See, for example, Wilson, Singer, and DeRenzis, “Growing Pains,” in Varsanyi, ed. Taking Local Control, pp. 193-215. 37 Furuseth and Smith, “Localized Immigration Policy,” in Varsanyi, ed., Taking Local Control.

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Su, “Immigration as Urban Policy,” p. 364. National Employment Law Project, “Costly in Every Way.” 40 Judd and Swanstrom, City Politics, p. 148. 41 Varsanyi, Taking Local Control, in Varsanyi, ed., p. 9. 42 Passel and Cohn, “Trends in Unauthorized Immigration,” 43 Varsanyi, ed., Taking Local Control, in Varsanyi, p. 9. 44 Ibid. 45 Dougherty, “Downtown slows growth of Hispanics, Asians in the U.S.,” p. A4. 46 CNN Wire Staff, “Nebraska Immigration Law Passes.” 47 Hines, “An Overview of U.S. Immigration Law and Policy Since 9/11,” p. 9. 48 Ibid., p. 11. 49 Ibid., p. 12. 50 Ibid., p. 22. 51 Varsanyi, ed., p. 11. 52 Langfeld, Rizzuti, Skain, and Sleckman v. The City and County of San Francisco. 53 Bologna v. City of San Francisco. 54 Gray v. City of Valley Park. 55 Lozano v. City of Hazleton. 56 Su, “Immigration as Urban Policy,” p. 369. 57 Ibid., p. 370. 58 Gorman, “Undocumented? Unwelcome.” 59 Schragger, “Mobile Capital, Local Economic Regulation, and the Democratic City,” p. 505. 60 Mayor’s Press Office, “Mayor Emanuel Announces Creation of Office of New Americans to Support Chicago’s Immigrant Communities.” 61 Su, “Immigration as Urban Policy,” p. 364. 62 Ibid. 63 Ibid., p. 373. 64 Furuseth and Smith, “Localized Immigration Policy,” in Varsanyi, ed., Taking Local Control, pp. 176-178. 65 Census Bureau, 1990 General Population Characteristics North Carolina. 66 Census Bureau, 2000 General Population Characteristics. 67 Furuseth and Smith, “Localized Immigration Policy,” in Varsanyi, ed., Taking Local Control, pp. 176-178. 68 Ibid., p. 82. 69 Ibid., p. 183. 70 Ibid., p. 186. 71 Ibid. 72 Furuseth and Smith, “Localized Immigration Policy,” in Varsanyi, ed., Taking Local Control, p. 187. 73 Ibid., p. 188. 74 Su, “Immigration as Urban Policy, p. 373. 75 Hendrix, “Takoma Park Stays Immigrant ‘Sanctuary.’” 76 Buffer, “Barletta: Illegals are not Welcome.” 77 Winders, “Immigration and the Changing Social Fabric of American Cities,” p. 66. 39

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78 Ramakrishnan and Wong, “Partisanship, Not Spanish: Explaining Municipal Ordinances Affecting Undocumented Immigrants,” in Taking Local Control, Varsanyi, ed., pp. 73-93. 79 Chavez and Provine, “Race and the Response of State Legislatures to Unauthorized Immigrants,” p. 90. 80 O’Neil, “Challenging Change: Immigrant population growth and local anti-immigration ordinances.” 81 Sandoval, “City Studies Tough Provisions Aimed at Illegal Immigrants.” 82 Su, “Immigration as Urban Policy,” p. 370. 83 Ibid. 84 Powell and Garcia, “PA. City Puts Illegal Immigrants on Notice.” 85 Berfanger, “Would Bill Make Immigrants Feel Unwelcome?” 86 Buffer, “Barletta: Illegals are not Welcome.” 87 McKanders, “The Constitutionality of State and Local Laws Targeting Immigrants,” p. 590. 88 CNN Wire Staff, “Nebraska Immigration Law Passes.” 89 National Employment Law Project, “Costly in Every Way.” 90 Martinez, “Unconstitutional and Costly.” 91 National Employment Law Project, “Costly in Every Way.” 92 Ibid. 93 Ibid. 94 ACLU: Immigrants’ Rights Project, “Anti-Immigrant Ordinances Have Real Economic and Political Costs for Cities that Enact Them.” 95 Ibid. 96 Martinez, “Unconstitutional and Costly.” 97 Rotenberk, “Immigration at Issue in Suburban Chicago Race.” 98 ACLU: Immigrants’ Rights Project, “Anti-Immigrant Ordinances Have Real Economic and Political Costs for Cities that Enact Them.” 99 Floyd, “Mayor: No Real Winners in This Vote.” 100 Bosniak, “Citizenship Denationalized,” pp. 447, 473. 101 Villazor, “Sanctuary Cities” and Local Citizenship,” p. 591. 102 Fenton, “The Fallacy of Federalism in Foreign Affairs,” p. 572

8 Foreign Policy Activism

Globalization enhanced local status and political clout within the hierarchy of governments. Communication pathways with international governments and markets have been opened by innovations in transportation which make international travel less expensive than it once was. Also, cheaper telephone communication and the advent of the Internet allows local leaders to easily initiate and negotiate agreements with transnational actors as collectives or individual units. Global networks of localities, non-governmental organizations, and businesses provide “institutional thickness,”1 wherein localities gain “greater strategic reach, a broader vision, and more resources to effectively compete in the competitive world economy.”2 These linkages elevate localities within the intergovernmental system3 and the international community by “weaken[ing] the exclusive authority of national states…thereby facilitat[ing] the ascendance of sub- and trans-national spaces and actors in politico-civic processes once confined to the national level.”4 In recent years, national leaders have been confronted by the elevated status of today’s localities in a number of ways—including in the formulation and execution of foreign policy. When localities engage in foreign policy activism, they address issues that extend well beyond local authority and jurisdiction boundaries. Because of this, the great majority of local foreign policy can be viewed as symbolic reprimand— the signaling of local concerns to higher government. Local activism, however, has the potential to affect national foreign policy by upsetting the status quo with the introduction of new norms. Citing Finnemore, Sikkink and Ingebritsen, Noah Toly writes: “Norms are ‘established practices, codes of conduct, and standards of acceptable behavior’ that reflect ‘oughtness and shared moral assessment,’ or ‘shared ideas, expectations, and beliefs about appropriate behavior.’”5 Local leaders who disagree with the direction of national foreign policy may act as

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“norm entrepreneurs, the objective of which… is to ‘persuade a critical mass of states…[or, in this case, localities] to embrace new norms by calling attention to or creating issues’… Norm entrepreneurs construct and mobilize support for ‘particular standards of appropriateness’ and convince states, potential norm leaders, to adopt these standards.”6 Local foreign policy activism, particularly once diffused, exposes unfavorable policies to public scrutiny. With sufficient exposure, higher government leaders are forced to defend the status quo or to consider new foreign policy directions. 1980s Foreign Policy Activism

In many ways, the foreign policy in the 1980s brought “distant”7 issues home. For example, disagreement with the Reagan administration’s Central American policies and politics, particularly with the funding of the Contra rebels against the Sandinista government in Nicaragua, motivated the local movement to provide sanctuary for Central American refugees in the 1980s.8 Even while the U.S. continued to fund the rebels’ efforts and the authoritarian governments of Guatemala and El Salvador, which were responsible for thousands of civilian deaths, the U.S. refused to provide safe harbor for political refugees fleeing Central America. In response, more than 400 religious congregations offered sanctuary to Guatemalan and Salvadoran refugees. Joining them were 29 localities (and two states).9 The localities, known as “sanctuary cities,” frequently justified their actions by pointing to the national government’s violation of higher laws and treaties such as the 1980 Refugee Act and “U.S. treaty obligations under the Geneva Conventions of 1949.”10 They “acted not out of self-interest—most anticipate[d] that the newcomers [would] soak municipal resources and compete for scarce jobs—but because they [were] appalled at INS policies.”11 Other cities made “public statements, nonbinding resolutions, and less formal ceremonial ties and affiliations to express their dissatisfaction with the state of relations with [Central American] countries.”12 In addition to providing sanctuary, 101 cities and counties elected to divest their assets from companies conducting business with or in South Africa in the 1980s. As South Africa’s apartheid regime gained exposure and stirred public debate, localities and others grew hostile to the U.S.’s ongoing economic ties with South Africa and called for sanctions. Whether U.S. reluctance to impose sanctions was to protect its economic interests or, as some claimed, to maintain a connection to the country in order to “influence events,” many felt that the U.S. “was providing ‘vital economic, political and military support to the [apartheid] regime.’”13

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After the Reagan administration’s policy of “constructive engagement” proved ineffective, the administration continued to support the South African regime financially, while also acting to block United Nation sanctions.14 This was unacceptable to many Americans. By the time U.S. sanctions against South Africa were finally enacted in 1986, the nation’s subnational governments were deeply involved in their own foreign policy. “By 1988, there were 23 states, 14 counties, and more than 70 cities that had passed divestment actions…Together they accounted for approximately $19.6 billion in public funds that had been redirected away from firms that do business in or with South Africa.”15 Chicago passed a strongly-worded anti-apartheid ordinance in July 1990. The ordinance went into effect in October of that year, prohibiting banking relations with financial institutions that held loans with South African businesses or the South African government. In addition, contracting with companies doing business with or in South Africa was prohibited, a ban that included “those with non-equity ties, such as licensing and franchising agreements.”16 Opponents threatened a variety of negative repercussions of divestment, including likely “problems…in terms of city bidding procedures, financial workings and purchases of such things as business machines and motor vehicles.”17 Supporters, however, agreed that the City of Chicago should “display solidarity with the oppressed people of South Africa in their struggle for freedom, justice and dignity, and…express…continued abhorrence of apartheid, and…join the renewed worldwide demand for the dissolution of apartheid.”18 Also during the 1980s, Ronald Reagan’s “commitment to a nuclear buildup and loose talk of nuclear war triggered widespread public anxiety and an outburst of popular protest,”19 which included the U.S. Nuclear Freeze Movement. Efforts to control the arms race had failed and when threats of U.S. and Soviet missile deployment became salient, demonstrations erupted across the world. Reassurances that these were peaceful installations did little to comfort the world’s citizens. Beginning in 1980, the Nuclear Freeze Movement, propelled by activist peace organizations, began to enlist localities to pass resolutions and ordinances supporting nonproliferation. “[B]y November 1983, the freeze had been endorsed by more than 370 city councils, 71 county councils, and by one or both houses of 23 state legislatures.”20 Part of their effort was to encourage localities to declare themselves to be nuclear free zones—jurisdictions wherein nuclear technology research and facilities, and investment in, or contracting with, companies associated with nuclear research or production, was prohibited. Nuclear free local governments defended their policies with their police power

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authority to protect the health, well-being, and safety of the public. By the late 1980s, “more than 900 local governments [had] acted on the freeze issue”21 and more than 12.8 million Americans lived in nuclear free zones.22 These localities were, in essence, saying to the federal government, “We can’t get you to abandon nuclear weapons, but we won’t allow you to deploy them in our name, or develop and produce them in our community.”23 The hope of the movement was to become widely diffused such that these “black-out” areas in the nation’s nuclear infrastructure would be sufficient to impede development, testing, and proliferation. Takoma Park’s Nuclear Free Zone Act provides an example of the language found in the free zone ordinances of the 1980s. The city found that the “nuclear arms race has been accelerating for more than one third of a century, draining the world’s resources and presenting humanity with the ever mounting threat of nuclear holocaust,” and that “national resources would be better spent on other human needs, including jobs, housing, education, health care, public transportation and services for youth, the elderly and the disabled.” Further, it supported “a bilateral weapons freeze” and cited the Nuremberg Principles, “which hold individuals accountable for crimes against humanity and the illegality of nuclear weapons under international law, in adopting this ordinance this community seeks to end its complicity with preparations for fighting a nuclear war.” The city prohibited nuclear facilities within the jurisdiction, and the contracting or investment of city funds with “industries and institutions which are knowingly and intentionally engaged in the production of nuclear weapons or their components” upon pain of citation beginning with $100 an extended to “the maximum allowable by law” for every additional day of continued violation.24 Related to the Nuclear Freeze and Free Zone Movements is the movement for a Comprehensive Test Ban. Calls for the end of nuclear testing came first from disarmament advisors in the 1950s. Until the 1990s, however, the national administration did not believe test bans were feasible. According to George Washington University’s National Security Archive, “In 1978, Carter administration arms controllers argued that a comprehensive test ban would weaken [the effects of] nuclear weapons because to “win the full prestige of possessing nuclear weapons,” a state would “need to demonstrate its capability with a test.”25 This attitude was not shared by all. By the end of the 1980s, nearly 220 localities had passed resolutions supporting a test ban. In addition to nuclear free and comprehensive test ban cities: “Other actions taken on nuclear issues in the 1980s included the rejection of nuclear shelter plans, the formation of the Jobs for Peace Campaign and

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local peace budgets, the development of ties with Soviet sister cities, and the establishment of local peace commissions.”26 There were 435 verified cases of foreign policy activism in the 1980s related to Test Bans, Nuclear Free Zones, Divestment from South Africa, and sanctuary for Central American refugees. This is a conservative number as it is unlikely that all cases of local foreign policy activism were discovered. These cases occurred in 22 states and 284 localities. Figure 8.1: Geographic Distribution of Foreign Policy Actvism in the 1980s

As shown in Table 8.1, Test Ban and Nuclear Free were the most active categories accounting for 36 and 35 percent of 1980s local foreign policy activism, respectively. The least active category was the provision of sanctuary to Central American refugees. This activity accounted for only six percent of 1980s local foreign policy behavior. The distribution of foreign policy activism among census divisions shows New England, Middle Atlantic, Pacific, and East North Central divisions as most active, in that order. The least active divisions were East South Central and West South Central. Using 1990 census data, four characteristics were observed to provide a general picture of localities involved in the 1980s’ foreign policy activism. The mean population, median household income, mean percent of population 25 years and older that hold a bachelor’s degree or greater, and the median age of the population were selected for review.

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National data is provided for comparison. Because foreign policy activism is progressive in nature, we might expect activist localities to have younger populations than the national average. In addition, research has shown that young people are more likely to participate in social movements.27 We might also expect higher educational attainment and salaries in activist populations. Those with a college education are thought to be more tolerant of different lifestyles and world views; therefore, activist localities should have higher educational attainment. 28 With regard to Divestment and Sanctuary cities, it appears that activist populations earn less than the national median household income and are younger than the national median age, yet their educational attainment is higher (see Table 8.2). These people live in jurisdictions with rather large populations. This is fairly consistent with an earlier study conducted by Heidi H. Hobbs in the 1990s. She found that Divestment cities, in particular, had larger populations and lower education and incomes than the nation’s averages and medians. These areas also had a larger Black population, suggesting that constituency pressure may have had something to do with the cities’ activism. As to Sanctuary cities, Hobbs found an existing immigrant population as a likely source of pressure. As immigrants often enter America through California, the larger Latino population in those areas may have caused leaders to become more aware and sensitive to the plight of Central American refugees who also frequented the California border. Of the sanctuary cities, 42 percent are located in the Pacific census division, perhaps reflecting pressure from those traditional immigrant communities. Nuclear Free Zones and Test Ban Cities have relatively smaller populations that earned more than the national household median income. Test Ban Cities had a household median income of $4,000 greater than the national median. Nuclear Free Cities earned nearly $2,700 more than the national household median. These cities are also 10-13 percentage points above the nation’s educational attainment rate (25 years and older, bachelor’s degree or higher), and are slightly older than the nation’s median age. The New Century

In the early 2000s, following successful U.S. military action in Afghanistan, the George W. Bush administration turned its sights on Iraq. Iraq was believed to be the main center of support for al-Qaeda and home to Saddam Hussein, Iraq’s then-president and dictator. Hussein’s abuses included an authorization to attempt President George H. W.

Table 8.1 Distribution of 1980s Foreign Policy Activism by Census Division

Test Ban Nuclear Free

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Divestment Sanctuary

New England 52 (34%) 37 (24%) 10 (10%) 3 (12%)

Middle Atlantic 50 (32%) 24 (16%) 15 (15%) 3 (12%)

East N. Central 9 (6%) 34 (22%) 17 (17%) 3 (12%)

West N. Central 6 (4%) 1 (>1%) 7 (7%) 3 (12%)

South Atlantic 6 (4%) 11 (7%) 22 (22%) 1 (4%)

East S. Central 1 (>1%) 1 (>1%) 0 (0%) 0 (0%)

1

West S. Central 1 (>1%) 1 (>1%) 5 (5%) 0 (0%)

Mountain 10 (6%) 8 (5%) 5 (5%) 2 (8%)

Pacific 20 (13%) 36 (24%) 20 (20%) 11 (42%)

% by Category 155 (36%) 153 (35%) 101 (23%) 26 (6%)

Percentage by Census 102 92 63 17 40 2 7 25 87 435 Division (23%) (21%) (15%) (4%) (9%) (>1%) (2%) (6%) (20%) (100%) Percentages are rounded. 1 U.S. Census Bureau. Census Regions and Divisions of the United States. New England: CT, ME, MA, NH, RI, VT; Middle Atlantic: NJ, NY, PA; East N. Central: IN, IL, MI, OH, WI; West N. Central: IO, KS, MN, MO, NE, ND, SD; South Atlantic: DE, DC, FL, GA, MD, NC, SC, VA, WV; East S. Central: AL, KY, MS, TN; West S. Central: AR, LA, OK, TX; Mountain: AZ, CO, ID, NM, MT, UT, NV, WY; Pacific: AK, CA, HI, OR, WA. !

Table 8.2 Selected Characteristics of Localities Engaging in 1980s Foreign Policy Activism

175,490 (31,273)

Nuclear Free 101,953 (5,627)

$34,057 30.71%

Test Ban Mean population of activist jurisdictions 1990. Median in 1 parentheses.

180

Median household income 1990

2 1

Mean percent with bachelor’s degree or higher 1990 1

382,751 (139,739)

318,466 (84,403)

United States 6,921/ 2 25,201

$32,730

$26,809

$29,334

$30,056

33.3%

28.1%

40.3%

20.3%

Divestment

Sanctuary

Median age 1990 33.8 33.4 31.5 31.4 1 U.S. Census Bureau. 1990 Social and Economic Characteristics. 2 Mean population for all municipalities, towns, and townships in the U.S./mean population for all municipalities, towns, and townships in the U.S. with populations over 2,500. 1992 Census of Governments Government Organization, v. 1, no. 1.

!

33

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Bush’s assassination, chemical warfare against his own citizens, and repeated attempts to build nuclear weapons; all of these reasons and others provided ample political cover for the president to proclaim Iraq to be a threat to U.S. safety. While there was no provable link between Hussein and al-Qaeda, “official America after 9/11 was uninterested in distinctions between one sort of Arab extremist and another.”29 In his State of the Union address, one year before 60,000 troops were deployed to the Gulf, President Bush informed the American people—and Hussein—of the need to preemptively subdue Iraq due to its position within the so-called “axis of evil.”30 The months leading to the initiation of the Iraq War were revelatory in that most of the U.S.’s historic allies backed away from preemptive military action against Iraq. But it was not only other nation-states that were opposed, the citizens of the world protested: “On Saturday 15 February some 100 million protesters in 600 cities took to the streets; perhaps as many as 2 million demonstrated in London.”31 At home, in U.S. cities, a similar sentiment fueled what would come to be known as the Cities for Peace movement.32 It began with 160 residents who descended upon the Town Hall of Salisbury, Connecticut, to vote on a resolution opposing pre-emptive action. Passing 156-4, the resolution made Salisbury the nation’s first City for Peace. Amy Lake, the citizen who initiated the resolution, claimed: “Our intent was to make some noise…to educate people…I think we all felt as if we had reclaimed our citizenship.”33 Soon other cities and towns joined in. “It’s like wildfire…By the end of the holidays we had about twenty-two cities. By the end of January, we had fifty-seven, and that’s when there started to be some publicity.”34 By the time of the March invasion of Iraq, 170 communities had passed resolutions in opposition to the war. Los Angeles City Council member, Janice Hahn, stated, “We’re debating this issue because those we have elected to debate this issue [in Congress] have abdicated.”35 By 2008, “the Cities for Peace movement [had] grown to include over 270 municipalities, 12 mayors, and 17 states, representing fully half of the U.S. population.”36 What did these resolutions include? Says Karen Dolan, a fellow at the Institute for Policy Studies (IPS) in Washington D.C.: The resolutions prior to the invasion cited a disbelief that Iraq posed any immediate threat to the United States; they cited the violation of international law such a preemptive attack on Iraq would perpetrate; they cited the enormous long-term cost in lives and money; they cited environmental and moral concerns such a strike posed. The post-

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invasion resolutions reiterated many of these concerns and wisely called for a prudent and swift end to the disaster. 37

The IPS webpage provides a resolution toolkit for localities to imitate—revealing an important component of today’s diffusion of activism. The Internet provides for rapid collective action as local leaders quickly learn of others’ activism, access movement tools and information, and publicly join in. Moreover, the Cities for Peace movement, because of its widespread diffusion, has inspired future action: “local elected officials who have seen the power of the Cities for Peace initiative are already talking about working together on broader initiatives that could make cities—including those from Republicanleaning states—a force”38 within the intergovernmental environment. The president of IPS predicts that local officials, having seen the force of the Cities for Peace movement, will continue to work with one another as well as “activists across the country to put neglected issues on the national radar.”39 The New England area dominated the Cities for Peace movement (see Figure 8.2). As shown in Table 8.3, sixty-five percent of activism against the War in Iraq occurred in the New England area, mostly in Massachusetts and Vermont, indicating an even stronger regional phenomenon than was found in the 1980s foreign policy activism. When including the Middle Atlantic, the resulting Northeast census region produced nearly 70 percent of Cities for Peace activism. With 19 percent, the East North Central division comes in second. The other census divisions were responsible for less than 16 percent of the Cities for Peace activism combined. The foreign policy activism of the 2000s included here show smallish jurisdictions engaging in activism (referring to the median), as shown in Table 8.4. The smaller size of cities reflects the dominance of New England localities in the movement. On the other hand, median household incomes, educational attainment, and age of activist populations were higher than the nation’s means and medians. They tended to earn nearly 25 percent more than the nation’s median household income, have over 13 percent higher educational attainment than the nation’s average (referring to those 25 and older with at least a bachelor’s degree), and were more than five years older than the national median age. Of the localities that engaged in foreign policy activism from 1980 to 2010, 276 of the 572 (284 in the 1980s and 288 in the 2000s) acted in more than one foreign policy area. As shown in Table 8.5, the New England area is the most active with 46 percent of local foreign policy

1

183

Table 8.3 Distribution of Cities for Peace Activism by Census Division West New Middle East N. South East S. West S. N. Mountain Pacific Totals England Atlantic Central Central Central Central Atlantic Cities for 187 11 55 3 4 0 0 9 19 288 Peace (65%) (4%) (19%) (1%) (1%) (0%) (0%) (3%) (7%) (100%) Percentages are rounded. 1 U.S. Census Bureau. Census Regions and Divisions of the United States. New England: CT, ME, MA, NH, RI, VT; Middle Atlantic: NJ, NY, PA; East N. Central: IN, IL, MI, OH, WI; West N. Central: IO, KS, MN, MO, NE, ND, SD; South Atlantic: DE, DC, FL, GA, MD, NC, SC, VA, WV; East S. Central: AL, KY, MS, TN; West S. Central: AR, LA, OK, TX; Mountain: AZ, CO, ID, NM, MT, UT, NV, WY; Pacific: AK, CA, HI, OR, WA.

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activism. The Middle Atlantic, East South Central, and Pacific follow with less than half of New England’s activity. Figure 8.2: Geographic Distribution of Cities for Peace Activism

Table 8.4: Selected Characteristics of Localities Engaged in Cities for Peace Activism

67,094 (4,807)

United States 7,014 (23,859)

$43,227

$41,994

33.5%

24.4%

38.2

35.3

Peace Activists Mean Population of Jurisdictions 2000 ex1 cluding counties. Median in parentheses. Median Household Income 2000

2

Mean Percent with Bachelor’s Degree or 1 Higher 2000 Median Age 2000 1

1

U.S. Census Bureau. 2000 Social and Economic Characteristics United States. 2 U.S. Census Bureau. Profile of General Population and Housing Characteristics: 2000. 3 Mean population for all municipalities, towns, and townships in the U.S./mean population for all municipalities, towns, and townships in the U.S. with populations over 2,500 using 1992 Census of Governments Government Organization, v. 1, no. 1.

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Table 8.5 Geographic Distribution of Localities that Acted in Two or More Foreign Policy Areas New England 128 (46%)

Middle Atlantic 47 (17%)

East N. Central 39 (14%)

West N. Central 5 (2%)

South Atlantic 15 (5%)

East S. Central 1 (>1%)

West S. Central 1 (>1%)

Mountain

Pacific

5 (2%)

35 (13%)

Percentages are rounded. U.S. Census Bureau. Census Regions and Divisions of the United States. New England: CT, ME, MA, NH, RI, VT; Middle Atlantic: NJ, NY, PA; East N. Central: IN, IL, MI, OH, WI; West N. Central: IO, KS, MN, MO, NE, ND, SD; South Atlantic: DE, DC, FL, GA, MD, NC, SC, VA, WV; East S. Central: AL, KY, MS, TN; West S. Central: AR, LA, OK, TX; Mountain: AZ, CO, ID, NM, MT, UT, NV, WY; Pacific: AK, CA, HI, OR, WA.

Discussion

In the following sections, the legal concerns associated with local foreign policy activism are discussed as is the potential usefulness of local activism to the formulation of national foreign policy. The motivations for local foreign policy activism are surveyed in relation to local demands. The usefulness of foreign policy activism to local economic development strategies and public education are discussed, as well as the likely outcomes of litigation arising from local foreign policymaking. Legal Concerns

The freedom to express disapproval with governmental action is embedded in our system, however, local governments, as subordinate units, are generally expected to support national policy, allowing the country to speak with one voice.40 In the words of Justice Hugo Black: “Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.”41 When local governments act in a way that is intended to impact other nations or firms, or when they shelter undocumented immigrants from national agencies, a real threat is posed to the impact of U.S. foreign policy. “In the worst case, the differences will communicate a national foreign

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policy substantially at odds with the articulated policy of the federal government.”42 The power of the federal government to quash cases of local foreign policy activism hail from the Supremacy and the Commerce Clauses of the U.S. Constitution, as well as the determination in the case, Zschernig v. Miller (1968). Federal supremacy has led to the preemption doctrine which holds that state and local laws are subject to preemption—express or implied. These involve explicit statements of preemption, or preemption that is implied within the purpose and structure of federal law. The ambiguity of implied preemption offers occasion for localities to attempt rebellion, as noted in Chapter 5. With regard to Zschernig, the 1968 Supreme Court found that an Oregon law was unconstitutional; it prevented residents of East Germany to inherit Oregonian property because there was no reciprocal law in place. The Court found that Oregon’s law had “great potential for disruption or embarrassment” and that the courts would, in the future, strike down state or local policies that had “more than ‘some incidental or indirect effect’ on U.S. foreign relations.”43 The Commerce Clause can be invoked if local activism has an interstate or international commerce effect. In the case of nonbinding resolutions—reprimand—local foreign policy activism is not challenged in the courts. National leaders may not like being reprimanded, particularly if the movement becomes strong enough to stimulate public debate of national policy, but there is no clear legal route to hushing local voices that do nothing more than express local desires. Short of trying to “change the views of foreign officials concerning disputes with the United States…local governments are free to launch educational, research, and lobbying programs on any foreign – policy issue they wish.”44 With that avenue closed, the Reagan and Bush administrations attempted to silence localities by making “repeated pronouncements against local ‘interference into foreign policy,’ sen[ding] stern letters to offending localities, and threaten[ing] to cut of federal grants.”45 In “instrumental” cases, those “that enjoy a tangible return or specific result that is defined by the action itself,”46 the courts have been less friendly, albeit somewhat conflicted. In the Board of Trustees v. City of Baltimore (1989) the Maryland Supreme Court allowed Baltimore’s instrumental divestment ordinance to stand, but only because its effects were “minimal and indirect.” “In other words, the Maryland judges declared that municipal foreign policy is legal only if it is ineffectual.”47 In April 1990, the courts struck down a nuclear-free zone ordinance in United States v. City of Oakland. Finding that the ordinance “put severe regulations on firms involved in the manufacture

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of nuclear weapons,” the court “invalidated most of the ordinance without even allowing the case to go to trial.”48 In 1986, a federal district court found a New Jersey county’s nuclear free ordinance preempted by the Atomic Energy Act (Radiation Technology, Inc. v. the County of Union). The Massachusetts Supreme Court, on the other hand, allowed Cambridge to prohibit a “local Pentagon contractor from testing, storing, transporting, and disposing of five highly toxic chemical warfare agents.”49 Without clear direction, localities may continue to act in foreign affairs, particularly when their action is not expressly preempted. The legal road is much easier if the locality can claim it did not know that its actions were preempted. If that point cannot be sold to the courts, however, local taxpayers are likely to be seated with the legal expenses associated with local activism. In this regard, legal ambiguity provides sufficient cover such that it is unlikely localities will abandon foreign policy efforts anytime soon. Nimble Localities In 2010, the states aren’t laboratories of democracy; they aren’t laboratories of anything, unless it’s insolvency. 50 Whatever the future of urban revival may be, its recent past reflects a record of impressive innovation by many mayors…the past decade has seen a budding of new ideas in urban policy far more interesting than anything that preceded it for a long time.51

An argument in favor of local foreign policy is that localities are much more nimble than higher governments. Of course, the local capacity to quickly legislate, because of past abuses, is also cause for concern. Certainly it was nimbleness that permitted an array of local civil rights abuses and repressive political and economic policies. These and other abuses underpin arguments to keep important domestic decisions out of local hands. Foreign policy decisions at the local level are even harder to imagine. Recently, however, localities have become “sites for a flowering of progressive policy developments. “Municipal living wage campaigns, local health care mandates, and local laborfriendly ordinances are examples.”52 Some of these developments seek to regulate…[issue areas] in the absence of federal or state activity.” 53 Where state and federal actors fail to respond, local governments may be able to step in and fill policy voids that might otherwise go unaddressed for years.

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In addition, policies that are popular and proven at the local level can be more easily adopted by higher governments. Charles Shipan and Craig Volden’s study of the diffusion of local antismoking policies to the states provides insight. They write, “State politicians look to localities for policy ideas that they can advance at the state level and for which they might claim credit. Local adoptions may signal political viability, and their stability over time may signal effectiveness.”54 In the case of foreign policy activism, legislators’ preferences that might not gain traction in a more secluded political environment may do better when elected leaders can point to local support. Speaking to the House regarding the war in Iraq: “…Jan Schakowsky proudly announced that her hometown, Chicago, ha[d] voted 46 to 1 against launching a preemptive attack. Says Schakowsky, “I think a number of members feel validated in their opposition to the war by the fact that the cities they represent have taken the same stand.”55 In other words, local activism can place issues on the political agenda in a way that traditional procedures and diplomatic political strategies often cannot. Local Responsiveness [L]ocal government is closest to the people…and many of our national policies are felt first—and in the end most profoundly—in America’s cities…There can be no better reason for cities to participate with all the vigor and imagination we can muster.56

Heidi Hobbs cites a growing awareness of international matters as among the stimulants for foreign policy activism in the 1980s.57 As the 1970s progressed, localities began to cultivate foreign ties for cultural and economic purposes. Direct communication between local citizens and leaders, and their sister cities and potential trade partners, along with widespread and instantaneous news coverage of international events and newly affordable travel and telephone communication, brought an “increasing global awareness at the local level.”58 In a real sense, both city leaders and their voters shed much of their parochial nature during the 1970s and 1980s, assuming, to varying degrees, a cosmopolitan perspective and a heightened sensitivity for the well-being of other populations. Thus, for instance, as the public became aware of the U.S. policies in Central America, they and organized interests began to call upon the governments closest to them to respond.59 A number of local leaders took up the charge, making foreign policy part of the local political dialog. For example, “[d]uring the December 1985 convention of the National League of Cities (NLC), Mayor Tom Bradley of Los

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Angeles made municipal foreign policies the centerpiece of his keynote address.”60 Of course, local leaders who choose to ignore popular demands run the risk of damaging their relationships with citizens. It is true that citizens are often unaware of which level or branch of government is responsible for a particular policy, its implementation, or outcome. It is also true that some citizens know quite well whom to hold responsible, yet they believe that their local leaders can and should use their positions to press for higher policy change. In either case, local leaders must respond to some degree of popular satisfaction—whether by shifting blame, creating local policy solutions, or by taking action on behalf of their locality. By engaging in activism, local leaders give expression to popular frustration while signaling to higher government that its policies are out of step with popular desires. Local leaders hope for policy change to result, but their activism also fulfills an important peace-keeping function. Activism may serve as a pressure valve, releasing citizens’ pent-up anger and frustration and thus perhaps preventing further erosion of citizen trust. Activism gives citizens a voice in matters that they might not otherwise have, particularly in matters of foreign policy—the most distant of issues. Marketing and Visibility [Cities]…are motivated by a sense that failure to act will have extremely negative consequences, having taken to heart Sassen’s argument that some cities will become “nodes” in the global economy while others will be left behind.61

Sometimes “distant issues”62—issues that occur elsewhere or to others—have distinct, usually economic, local effects. Globalization, for example, widened local access to resources allowing them to expand their “production, consumption, circulation, and accumulation of commodities…”63 At the same time, local dependence upon foreign investment has grown. Heidi Hobbs suggests that some localities engaged in the 1980s foreign policy activism to protect their current and potential economic partnerships, pointing to declining federal aid and the need to cultivate new investment avenues as reasons for engaging in activism.64 Suffering from lost access to federal aid, many felt the nation’s tax dollars were being misspent on the U.S. military, whose budget ballooned to $253 billion (1985).65 Because of today’s “fend-foryourself” environment and localities’ very real fear of missing the global economic boat, pressure upon localities to maintain foreign investment

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ties is perhaps even greater and more important today than it was in the 1980s. To protect fragile bonds, some local leaders may try to distance themselves, if only symbolically, from unfavorable foreign policies. By taking foreign policy positions that are at odds with federal authority, local leaders may generate media attention and positive economic benefits. Local activism becomes a marketing tool for foreign capital investment. Of course, benefits may accrue domestically, as well. Localities may achieve political clout in higher policy arenas; activist leaders may gain a career boost from the focused attention; and relocating citizens and firms might consider the activist locality due to its reputation of having progressive leadership. This type of effect is not limited to foreign policy activism. Any type of activism helps to brand localities as edgy and interesting. Activism allows localities to project an image that is at once memorable and feisty, just the type of place that is attractive to many of the knowledge-based, “creative class” workers in the new global economy.66 Educating the Public

When localities engage in activism, particularly when that activism is widely diffused, they serve a public education function. Regarding foreign policy, local activism can be especially valuable as many Americans are disconnected from international affairs. Their government’s activism may expose them to information and worldviews that they might have otherwise missed. It is possible that this education will lead to greater popular support and wider activism diffusion. Michael Schuman writes: “Expression of critical views spreads vital information, sparks debate, and encourages national reflection. Had these kinds of measures [foreign policy activism] been passed in the 1960s and 1970s, some of the country’s most serious foreign policy blunders, such as the Bay of Pigs invasion and the continuation of the Vietnam War for more than a decade, might have been averted.”67 For educational efforts already underway, local activism can infuse energy and help groups to mobilize or move existing campaigns forward. An educated public is more likely to become engaged, hold leaders to their word, and act to prevent the implementation of foreign policies that seem detrimental to the people.

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Court Resolution

One of three outcomes is likely in cases of foreign policy activism brought to trial. Court involvement has the potential to expand the power of localities should it be found that the offending locality was, in fact, acting within its power. This is most likely in cases where the state has granted localities broad home rule authority in its constitution. If the courts were to find local activism valid under their home rule powers, justifying the activism under the locality’s charge of public health and safety protection, the scope of home rule would necessarily be enlarged. Indeed, the potential to institutionalize municipal foreign policy may be a consideration when determining whether to pursue legal action. In states where no home rule authority exists, or in others where home rule is provided statutorily, it is a fairly simple matter to strike down local law (in the former case), or to alter state law to prohibit specific foreign policy activity. Conversely, a court might find that a locality is acting beyond its authority and nullify local laws. Or a locality may be found to have acted beyond its authority knowingly, nullifying local laws and opening the door for its municipal insurer to request to be released from its obligation to pay litigation expenses. Appeals are likely, perhaps especially in the latter case. Determinations are generally made in consideration of three principles: “federal statutory preemption, unconstitutional restrictions on foreign commerce, and unconstitutional interference in foreign policy under the supremacy clause.”68 These are the grounds upon which “two fundamental inquiries” are based. These tests are intended to determine whether local activity serves a legitimate local purpose, and whether the local activity might interfere with current or future federal efforts to address the issue under question.69 The way that the court applies these tests is somewhat arbitrary. In the Board of Trustees v. City of Baltimore, a divestment ordinance was upheld due to the courts’ determination that it had minimal impact. In opposition, Michael Shuman argues that divestment has, indeed, had a substantial impact: “If there is any one fact upon which both supporters and opponents of local antiapartheid laws agree, it is that such measures have exerted a profound influence, not only on the South African government…but also on Congress, which heeded the message from the grassroots and passed the Comprehensive Anti-Apartheid Act over then president Ronald Reagan’s veto.”70 Consider another case. Oakland’s nuclear free zone ordinance “put severe regulations on firms involved in the manufacture of nuclear weapons: It banned them from doing any contracting and subcontracting

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work on nuclear warheads or delivery systems within city limits; it required the city to stop investing in or entering into contracts with these firms; and it limited the transportation of nuclear materials on the city’s streets.”71 The ordinance was invalidated outright for interfering with the national defense and atomic energy authority (United States v. City of Oakland). The court did, however, allow Oakland to post signs proclaiming the city to be nuclear free. As to local purpose, it is often easy to parse, but difficult to argue, what a municipal foreign policy’s purpose is in relation to a particular locality. While economic benefits may accrue, or economic losses may result from inaction, neither are certain and both are difficult to demonstrate. Substantiation may, however, be possible in cases where the locality faces the immediate risk of losing existing residents and firms. Thus, the argument for local purpose often centers on a moral argument: the desire or need to satisfy local values. In a legal square-off regarding foreign policy, moral arguments rarely, if ever, win. The key to advancing a moral argument via activism is diffusion and salience. “Expanding the scope of conflict”72 stimulates public debate which can fill the political space and pressure higher leaders for change. Quite often, there is no court action in local foreign policy cases, particularly in cases of reprimand, the most common form of local activism. Threats, demands, and other means of intimidation might be employed, but higher government leaders may opt out of litigation because of the expense, political exposure, dedication to states’ rights, or perhaps out of fear they just might not win. Even in so-called clear-cut cases, where finding against the locality seems certain, the ultimate decision is in the hands of a court and its interpretation of preemption status.73 Thus, it is possible that localities could actually gain powers through litigation, although not likely. When questions arise as to whether a locality can act on a particular matter, the court tends to side with the state—even when the state has previously passed legislation instructing the courts to expansively interpret local discretionary power. Where legal action occurs, congressional benefits may accrue. Litigation may slow a local foreign policy movement to a halt with delays and set-backs. This may be an effective means to undermine local movements, allowing higher leaders to avoid the political backlash that might follow direct efforts to quash it. In addition, court resolution can be an effective way to settle highly controversial matters, preventing higher leaders from having to stake a position, or, perhaps, resolving issues that are caught in bipartisan gridlock. The risk is that, in the process, Congress abdicates authority to the courts, power that is already eroded. With Zschernig v. Miller (1968), the Court assumed the power

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to determine whether local laws threatened national supremacy or foreign policy aims—without having to demonstrate that the local law violated a specific law or constitutional principle. Rather, the Court can, based on subjection, determine that a law is invalid merely for its potential to “disrupt or embarrass” the nation. This assumption of power necessarily reduced the power of Congress, the president, and the people, generally, while expanding the power of the court.74 Nevertheless, there are clear benefits in, at least sometimes, allowing for heated matters to resolve before a bench, particularly in the hostile bipartisan environment that has characterized Congress and the nation in recent decades.

Notes 1 Amin and Thrift, “Globalization, institutional ‘thickness’ and the local economy.” 2 Tsukamoto and Vogel, “Rethinking Globalization—The Impact of Central Governments on World Cities” in Governing Cities in a Global Era, Hambleton and Gross, eds. p. 18. 3 Friedmann, “The World-City Hypothesis,” pp. 69-83; Knox, “World Cities in a World-System”; Sassen, The Global City. New York, London, Tokyo; Taylor, World City Network. 4 Sassen, Foreword, in Drainville. ed., Contesting Globalization, pp. vii–ix. 5 Toly, “Transnational Municipal Networks in Climate Politics,” p. 345. 6 Ibid. 7 Rucht, “Distant issue movements in Germany,” in Globalizations and Social Movements, pp. 76–105. 8 Hobbs, City Hall Goes Abroad, pp. 33-37. 9 Shuman, “Dateline Main Street: Courts v. Local Foreign Policies,” p. 159. 10 Ibid., p. 165. 11 Ibid., 159. 12 Hobbs, City Hall Goes Abroad, pp. 33-34. 13 Ibid., p. 29. 14 Ibid., p. 30. 15 Ibid., p. 33. 16 Staff Writer, “Chicago Passes Anti-Apartheid Ordinance,” p. 1. 17 Davis, “City Revives South Africa Ban.” 18 Chicago City Council, “Chicago Anti-Apartheid Ordinance.” 19 Wittner, “Reagan and Nuclear Disarmament,” pp. 4-6. 20 Wittner, “The Nuclear Freeze and Its Impact.” 21 Hobbs, City Hall Goes Abroad, p. 21. 22 Shuman, “Dateline Main Street: Local Foreign Policies,” p. 161. 23 Cristoffel, “Nuclear Free Zones,” p. 870. 24 Takoma Park Nuclear Free Zone Act. Ordinance No. 2703. 25 Burr, ed., “The Test Ban Challenge.” 26 Hobbs, City Hall Goes Abroad, p. 27.

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27 Klandermans and Oegema, “Potentials, Networks, Motivations, and Barriers,” pp. 519-31; McAdam, “The Biological Consequences of Activism,” pp. 744-760; Schussman and Soule, “Process and Protest,” pp. 1083-1106. 28 Verba, Schlozman, and Brady, Voice and Equality. 29 Keegan, Iraq War, p. 100. 30 Ibid., pp. 88-164. 31 Ibid., p. 105. 32 See citiesforpeace.org. 33 Nichols, “Building Cities for Peace,” p. 20. 34 Ibid., p. 22. 35 Ibid., p. 20. 36 Dolan, “Foreign Policy Goes Local.” 37 Ibid. 38 Nichols, “Building Cities for Peace,” p. 22. 39 Ibid., p. 20. 40 Fenton, “The Fallacy of Federalism in Foreign Affairs,” p. 572 41 Hines v. Davidowitz. 42 Fenton, “The Fallacy of Federalism in Foreign Affairs 578. 43 Shuman, “Dateline Main Street: Courts v. Local Foreign Policies,” p. 166. 44 Ibid., p. 163. 45 Ibid., p. 159. 46 Hobbs, City Hall Goes Abroad, p. 70. 47 Shuman, “Dateline Main Street: Courts v. Local Foreign Policies,” p. 160. 48 Ibid. 49 Shuman, “Dateline Main Street: Local Foreign Policies,” p. 164. 50 Ehrenhalt, “Taking Stock,” pp. 8-9. 51 Ibid. 52 Schragger, “The Progressive City,” p. 39. 53 Ibid. 54 Shipan and Volden, “Bottom-Up Federalism,” pp. 826-827. 55 Nichols, “Building Cities for Peace.” 56 Ibid. 57 Hobbs, City Hall Goes Abroad, pp. 5-7. 58 Ibid., p. 3. 59 Ibid., pp. 5-6. 60 Shuman, “Dateline Main Street: Local Foreign Policies,” p. 157. 61 Provine, “Local Immigration Policy and Global Ambitions in Vancouver and Phoenix,” in Varsanyi, ed., Taking Local Control, p. 218. 62 Deiter, “Distant issue movements in Germany,” in Globalizations and social movements, Guidry, Kennedy, and Zald, eds., pp. 76–105. 63 Luke, “’Global Cities’ vs. ‘Global Cities,’” pp. 11–33. 64 Hobbs, City Hall Goes Abroad, p. 3. 65 Office of Management and Budget, Fiscal Year 2012, Budget of the U.S. Government. 66 Florida, Cities and the Creative Class. 67 Shuman, “Dateline Main Street: Courts v. Local Foreign Policies,” p. 172. 68 Fenton, “The Fallacy of Federalism in Foreign Affairs,” p. 571.

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195

Ibid. Shuman, “Dateline Main Street: Courts v. Local Foreign Policies,” pp. 166-167. 71 Ibid., p. 160. 72 Schattschneider, The Semi-Sovereign People. 73 Shuman, “Dateline Main Street: Courts v. Local Foreign Policies,” p. 160. 74 Ibid. 70

9 Reexamining the Role of Local Governments

This book has explored the changing status of localities within the intergovernmental system and the recent emergence of local activism as a political strategy to generate higher policy change. In this book, local governments are presented as open and exposed to external forces, including, and perhaps most importantly, the imposition of higher governments into the local sphere of authority. At the same time, local leaders are beholden to their constituents, mandated by their states to provide essential services, and expected by their constituents to provide an ever-widening range of services to enhance the ever-changing local quality of life. Responsiveness to these demands is necessary for survival; thus localities are also self-interested political actors that strategize and fight to protect the autonomy and discretion necessary to meet local needs. Localities are also increasingly self-sufficient. Born of necessity, local governments have become more professional and competent, selfreliant and energetic. Their tax bases are diversifying, enabling local governments to access revenues provided by the services and industries of the new economy. Local government management and political representation has strengthened under the competent leadership of professional, creative, strong elected leaders. Moreover, many are in resurgence. As they grow, they become more important to state and federal political leaders and, therefore, harder to ignore. It is not surprising that as the nation’s “children”—now maturing and largely self-sufficient—are rebelling against their overbearing and neglectful parent-states. With communication ties strained, problems ignored, and coffers raided, it is only rational for a competent, selfinterested “child” to assert himself, and more aggressively over time. Perhaps there is a need to reexamine the stature and role of local

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governments within the federal system and adjust certain aspects of the federal arrangement accordingly. Some adjustments to consider include institutional reform, decentralization, and intergovernmental communication. Institutional Lag

Local activism might be the product of lagging institutional adaptation. Institutional arrangements are the products of the eras in which they were adopted or reformed. Local autonomy was limited with the writing of the Constitution, and further limited with nineteenth century legal contests, thus, their subordination is a relic of history. As Richardson Dilworth writes, localities are “historical composites… [polities] permeated by authority relations that have been constructed historically, [polities] caught up in their contradictions and animated to seek their resolutions.”1 As subordinate units, “creatures, agents, and delegates of the states,”2 local governments have tripped along through the twentieth century, constrained by their aging institutional arrangement. Home rule was intended to empower localities by providing a realm of “purely local” authority to local leaders—an institutional fix. Despite this attempt, the courts continue to favor the states and most states have done little to correct the issue. In the intergovernmental arena, localities are seen as “rival institutions. Legislators… have little to gain in an electoral sense by giving away authority to local governments, by improving the general level of state aid to localities, or by avoiding mandates on local officials.”3 Thus, home rule as an institutional remedy has been only partially achieved. Indeed, home rule is, at times, further limiting as higher governments, when called upon for help, can point to local home rule to avoid taking on costly responsibilities. Decentralization

The nation’s federal system decentralizes power to the states, but we are now living in a world where localities are increasingly active within, and important to, larger systems. Decentralization, however, stops at the state level. It was not always so. Recall the closed corporations of the Colonies and the regard for local self-governance that persisted to the 1830s. Today, the landscape and the demands within it are much more complex. Some would argue, and not inaccurately, that this complexity demands centralized oversight. Is it not true that some of the worst abuses faced by our nation were perpetrated at the local level? Is this not the reason for local subordination in the first place? So we equate state

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control with local oversight and positive intervention in areas where localities either cannot or will not act on their own. Thus, the states have constitutionally protected authority over localities. Such authority—paternalism—suggests that the states will have the best interest of their localities at heart; unfortunately, this has not always proven the case. Recent partisanship and gridlock might be blamed, or the movement toward candidate-centered politics and the corresponding distraction of fundraising. These and other blockages provide reason to consider further decentralization as localities are less likely to be dominated by partisan concerns, and are less controlled by special interests. With greater decentralization—real second-order devolution— local maturation is acknowledged, accountability, efficiency, and democracy are enhanced, and policy experimentation becomes more likely. Yet, centralization continues. The decentralization that has been achieved involves the devolution of responsibility, rather than real power. It is the assignment of burdens upon localities, rather than the granting of authoritative tools and the capacity to meet their new demands.4 Intergovernmental Communication

Of course, behind the issues addressed by local activism is the lack of healthy and regular intergovernmental communication. Recall that city managers report that state-local communication has “changed” or “weakened.” Some states are worse than others. In California, those relations are “broken” and “dysfunctional.”5 Even when communication is achieved, it is difficult for localities to gain a sufficiently large and sympathetic audience in state or national legislatures to accomplish change. As stated in an earlier chapter, today’s localities are little more than special interests; their needs and demands must compete with other interests that have the ability to support revenue-hungry campaigns. “According to…experts, the state of [intergovernmental relations] could be better. Unfortunately, they do not believe that it is getting better. Moreover, due to the strains of the recession and reconfigured federal programs, it may be getting worse.”6 Without effective means of communication, local (and state) leaders will continue to search for effective, perhaps extralegal, means to signal higher governments and promote favorable policy change. Perhaps one key to better communication is the return of the intergovernmental partnership. The partnership of the twentieth century was never without conflict; however, the recognition of interdependence helped to distribute local burdens among the levels of government such

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that all held some responsibility for their resolution. With all holding the bag, communication became necessary for the design and implementation of policy solutions, allowing localities access, and opportunity to cooperate with, or to challenge, higher leaders. Most do not have such an outlet today. And, facing their own challenges, higher government leaders apparently feel less responsibility for local concerns than they once did. The resulting environment is a conflicted space wherein localities are expected to perform, indeed, they must perform to survive, with resources and authority that are subject to frequent state and federal manipulation: “subjected sovereignty” as Jerry Frug put it.7 Partnership would ease some of pain associated with this conflicted status. Having learned the lessons of dependency, a growing number of today’s leaders aim to change the political, economic, and social context within which they operate. Through their efforts, they have linked with regional and international leaders, gaining status and connections that translate into “institutional thickness” and external influence. When local problems go unaddressed due to higher government inaction, or when higher government policies are mismatched to local values or needs, these leaders sometimes purposefully disrupt, rather than passively accept, the status quo. As David Easton predicted, local leaders may sometimes choose to “take positive action to destroy a previous equilibrium or even to achieve some new point of continuing disequilibrium.”8 Local activism is one means to accomplish that task. A “New” Forum for Communication?

One approach toward mitigating and mediating today’s intergovernmental conflicts would be to revisit the purpose and utility of the U.S. Advisory Commission on Intergovernmental Relations (ACIR). The ACIR was created by Congress in 1959 to foster intergovernmental cooperation, but was dismantled in 1996 after falling victim to financial and political pressures. Through its research and recommendations, the ACIR helped to mitigate some of the conflict and tensions that are now increasing in the intergovernmental arena. Indeed, Since 1996, a number of the issues that gave rise to topics placed on the ACIR’s agenda have persisted and worsened, such as the fiscal imbalance in the federal system; unweidly growth of grants; poor design of federal programs from efficiency, effectiveness, and equity considerations; the coercive nature of intergovernmental regulations and federal preemptions; unfunded and underfunded federal mandates;

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tensions in state-local relationships; and obstacles to multistate and substate regional collaboration.9

In the 17 years since the demise of the ACIR, attempts to create similar bodies have met with a bevy of political and financial impediments.10 Not least is that the national commitment to the pursuit of intergovernmental harmony is weak, and weakening even more so as coercive policy tools, such as mandates and preemptions, prove more efficient to the accomplishment of national goals than negotiated policy solutions and shared responsibility. Thus, efforts “taken in recent years to test the waters regarding the need and willingness to pay for restoring an ACIR-like capacity to the federal system”11 have proven futile. As a result, lost is our institutional memory [and] organizational capacity to momitor intergovernmental problem areas, collect and interpret data, identify trends, convene intergovernmental partners to discuss issues, and find ways to reduce friction points and restore balance.12

Without a mediating, ACIR-type body, what can localities (and the states, for that matter) expect from intergovernmental relations in the future? Clearly, such an organization would not—could not—mitigate all intergovernmental conflict. But without this type of forum, localities remain largely sidelined, searching for a voice, for ways to project the needs and desires of local governments among other, more powerful, governments. We might expect, then, that local activism will continue, and perhaps grow in incidence, as local leaders learn from one another’s successful and unsuccessful activist efforts.

Notes 1 Richardson Dilworth, The City in American Political Development (New York: Routledge, 2009), p. 2. Quoting Karen Orren and Stephen Skowronek, The City in American Political Development (New York: Cambridge University Press, 2004), pp. 108, 114, 120. 2 Richard Briffault, 1990. “Our Localism: Part I - The Structure of Local Government Law.” Columbia Law Review 90(1): 112. 3 Berman, Local Government and the States, p. 41. 4 Bowman and Kearney, “Second-Order Devolution.” 5 Ibid., p. 14. 6 Perlman, “Governance Challenges and Options for State and Local Governments,” p. 250. 7 Frug, “Decentering Decentralization, p. 253.

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8

Easton, A Systems Analysis, p. 20. Carl W. Stenberg, 2011. “An ACIR Perspective on Intergovernmental Institutional Development.” Public Administration Review 71(2): 172. 10 Ibid. 11 Ibid., p. 172. 12 Ibid. 9

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Index Abbot, Sam, 152 American Civil Liberties Union, 8, 99, 123, 150 American Municipal Association, 46; National League of Cities, 9, 46, 50, 159, 188 Austin, Texas, 71

Credit claiming/taking, 60, 63, 107, 136, 188 Defense of Marriage Act, 118, 124, 139 Democracy Now!, 122 Devolution, 51, 63, 69, 74, 160; decentralization, 135, 198-199; New Federalism, 50, 58, 77; Ronald Reagan, 50-51; secondorder devolution, 9, 55, 60, 199; “the power of the servant,” 9, 61, 100 Dillon’s Rule, 33-34, 38-39; City of Clinton v. Cedar Rapids and Missouri Railroad Company, 34; John F. Dillon, 3, 34 Dolan, Karen, 92, 181; Institute for Policy Studies, 92, 181-182 Dunlap, Victoria, 121

Barletta, Louis, 96, 149, 167; see Pennsylvania, Hazleton Bill of Rights Defense Committee, 100-101 Bing, David, 57 Blame avoiding, 60 Bloomberg, Michael, 78, 96 Booker, Cory, 78, 96 Bowers v. Hardwick, 117, 119 Bush, George W., 6, 58, 152; and same-sex marriage, 115, 119; and the Iraq War, 178, 181 California, 1, 54, 61, 96, 107, 115, 118-121, 132, 135, 139-141, 147, 178, 199; Arcata, 88-89; Escondido, 99, 161, 167; Riverside, 168; San Francisco, 23, 29, 78, 95-96, 115-122, 132133, 135, 137-141, 148, 169. See LGBT Rights, domestic partner protections. See LGBT Rights, same-sex marriage. See Newsom, Gavin. See also Ninth Circuit Court of Appeals and Proposition 8 Christie, Chris, 86. See also Professional and Amateur Sports Protection Act Cities for Peace movement, 88, 92, 101, 107, 111, 181-184. See also foreign policy activism Civil disobedience, 6, 60, 87, 90, 120, 138 Clinton, William J., 118

Employee Retirement Income Security Act, 118 Economic Development Administration, 51 Federal urban programs: and the Community Development Block Grant, 51; and disinvestment, 16, 49-52, 74; and federal aid, 8-9, 16, 47, 51-52, 55, 63, 99, 117, 189; and general revenue sharing, 47, 51; and the Great Society Programs, 49; and the New Deal, 45, 47, 98; and preemption , 5253, 90, 117, 148, 150, 186, 191192, 200-201. See also Reynolds v. Sims Federalism: coercive, 6, 50, 62, 200201; cooperative, 10, 44, 46-47, 68, 98; and decentralization, 52, 135, 198-199; dual, 43-44; and federal abdication of responsibility, 157, 159; and

221

222

Index

federal grants, 47, 51-52, 54-55, 63, 99, 117, 186, 189, 200; fend for yourself, 8, 55, 189; and legislative gridlock, 6-7, 53, 62, 192, 199; localities as “third partners” in, 7, 45-46, 62; New Federalism, 50, 58, 77; Tarbel’s Case, 43; Tenth Amendment, 43, 170n24; uncooperative, 61, 87, 90 Food sovereignty, 1, 3, 93, 101; and the Food Safety Modernization Act, 1, 94; and the Local Food and Community Self-Governance Act, 94; and Sedgwick, ME, 1, 93 Foreign policy activism: and antinuclear related local policies, 3, 100-101, 107, 111, 175-178, 181, 186-187, 191-192; characteristics of localities engaging in, 177178, 182-185; and the Cities for Peace movement, 88, 92, 101, 107, 111, 181-182, 184; court resolution of, 191-193; diffusion of, 91-92, 101, 121-125, 140, 181-182, 190, 192; as an economic development tool, 7072, 77, 189-190; and economic divestment from South Africa due to apartheid, 3, 96, 100-101, 107, 111, 174-175, 177, 191; as an educational tool, 190; federal supremacy and, 147, 173, 185187, 191-192; global awareness and, 173, 188-189; Heidi Hobbs and, 178, 188-189; and the Iraq War, 3, 17, 88, 92, 107, 111, 178, 181-182, 188; national response to, 186, 192; potential impact of, 100, 169, 174, 185-186, 188; and the Reagan administration’s Central American policies, 3, 111, 174, 177-178, 188 Frank, Barney, 138-139 Globalization: causes of, 76-77; characteristics of, 10, 70, 76-77, 190; dependence on foreign investment and, 77, 96, 176-178, 189; jobs in the new economy,

10, 16, 70, 75, 77, 162, 190; local government stature and, 70, 7677, 79, 173, 200; waves of, 76-77 Goodman, Amy, 122. See Democracy Now! Goodridge v. Massachusetts Department of Public Health, 119 Great Depression, 8, 38, 44-46, 78; Franklin D. Roosevelt, 45-46; New Deal programs, 45, 98 Great Society programs, 47-49: localities’ participation in, 47-49; Lyndon B. Johnson, 47, 49 Gun control, 3, 71, 81, 91; and District of Columbia v. Heller, 3; and the National Rifle Association, 90. See Nutter, Michael. See Pennsylvania, Philadelphia Hawaii, 126, 139: Baehr v. Lewin, 126 Illinois, 135, 139; Chicago, 29-30, 68, 75; sanctuary city, 162; and immigration, 158, 162, 168; and foreign policy activism, 175, 188 Immigration: activism in Hazleton, Pennsylvania, 148-150; activism in Takoma Park, Maryland, 152153; and Charlotte-Mecklenburg, North Carolina, 163-164; and the economic harms of activist policies, 167-168; and federal policy, 7, 150-151, 158-160; and the harms of local activism to national policy, 169; Human Rights Campaign, 100, 118, 124; and local characteristics, 153157; and the local economy, 149, 166; in Nashville, Tennessee, 165; and the personal harms of activist policies to local leaders, 168-169; potential causes of immigration activism, 149, 158162; and punitive local policies, 148-157; and sanctuary policies, 151-157; settlement patterns (gateway city), 157 In re Marriage Cases, 120

Index 223

Intergovernmental environment: and interest groups, 58-59; and intergovernmental politics, 5, 56; and intergovernmental power, 2, 5-11, 21, 28, 34, 44; and intergovernmental relations, 2, 511, 27, 43-63, 68-69, 197-201; local influence on the, 4, 38-39, 45, 100, 173, 182; localities as political actors in the, 12-13, 6162, 69-77, 100, 182. See National Association of County Officials. See U.S. Advisory Commission on Intergovernmental Relations. See localities as open systems Iowa: Polk County, 125; state supreme court, 125 Kulongoski, Governor Theodore R., 124. See Oregon Lawrence v. Texas, 119 LGBT activism: in California, 115121, 132-135, 139; in Iowa, 125; in Maryland, 125; in New Jersey, 125; in New York, 116, 122-123, 125, 128-129; in Oregon, 116, 123-124, 126-128, 132-133; as supportive activism, 126-130; as unsupportive activism, 126-130; in Washington, 124-125; in Washington, D.C., 125. See also Lockyer v. City and County of San Francisco. See also In re Marriage Cases. See also Perry v. Brown. See also Proposition 8 LGBT rights: and domestic partner protections, 97, 110, 116-118, 124, 128, 135, 139; and equal benefits ordinances, 118; and the gay movement, 117, 130, 138140; and same-sex marriage, 95, 97, 119-125, 128, 133-135, 138142 Local activism: continuum of, 87-91; conservative activism, 72, 97, 141, 163, 165; distribution of across census divisions, 103-107; incidence of, 101-111; and legislative gridlock, 6-7, 53, 62,

188, 199; local government structure and, 107-110; localities with several cases of, 108; motives for, 93; as opposed to diplomacy, 2, 6, 81, 86, 188; potential harms of, 98, 138-140, 167-169; potential benefits of, 92-97, 134-138, 140-142, 187193; and state and federal abdication of responsibility, 57, 80, 82, 136, 159-161, 182, 187, 197; as symbolic policy, 7, 88, 116, 125, 137, 173. See also foreign policy activism, LGBT activism, and immigration Local capacity/urgency model, 94-95 Local economy: capital mobility, 73, 96-97, 161-162; economic development strategy, 9, 16, 34, 51, 71, 77, 137-138, 149, 161162, 166, 189-190; and the economic lifecycle of cities, 72, 166; globalization, 76-79, 173, 189; intergovernmental competition, 5, 7, 11, 13, 24, 47, 59-63, 72- 73, 77, 97; local selfinterest, 4-14, 72-77, 81-82, 197; revitalization, 10, 47, 51, 70, 73, 78, 162 Local revenues: alternative revenue sources (other than property), 5355; “non-tax taxes,” 54-55; property taxes, 53-54; tax and expenditure limitations, 54, 99 Local self-determination, 22-23, 5557, 80-81 Local self-interest, 11-12. See local economy Localities as open systems, 5-14, 7981 Lockyer v. City and County of San Francisco, 120, 132-133 Lyndon B. Johnson, 47, 49. See Great Society programs Mabon, Lon, 126. See Oregon Maryland: Takoma Park, 108,125, 152, 165, 169, 176; Baltimore, 125, 186 Messiah mayors, 68, 78, 96

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Index

Michigan: Detroit, 57, 73 National Association of County Officials, 46 National economy: in the 1930s, 4548; in the 1970s, 48-50 National League of Cities, 9, 46, 50, 159, 188 National Rifle Association, 90. See gun control New Deal Programs, 45-48; Franklin D. Roosevelt, 45-46; localities’ participation in, 7, 45-48, 62 New Federalism, 50, 58, 77 New Jersey: Asbury Park, 166, 125; James Bruno, 125 New York: Brighton, 125; Buffalo, 125; Ithaca, 123, 125; New Paltz, 116, 122, 133; New York City, 125, 23-24, 27-32, 37, 75, 78, 116; Nyack, 122, 125; Rochester, 125 Newsom, Gavin, 2, 78, 95-96, 115, 119-121, 130, 132, 134, 138, 140. See California, San Francisco Nickels, Greg, 124. See Washington Ninth Circuit Court of Appeals, 3, 89, 121. See Proposition 8 Nixon, Richard, 49. See New Federalism Nuclear-free zones, 3, 111, 152, 186. See foreign policy activism Nutter, Michael, 78, 90, 96. See also Philadelphia, Pennsylvania Obama, Barack, 139 Occupy movement, 62; popular discontent, 6, 62, 81 Ohio Jobs and Justice PAC, 153 Opensecrets.org, 59 Oregon, 123-128, 133, 135, 139, 153, 186; Benton County, 116, 133; Governor Theodore R. Kulongoski, 124; Lon Mabon, 126; Measure No. 9, 126; Multnoma County, 116, 123; Oregon Citizens Alliance, 126; Portland, 116, 123; Supreme Court, 123, 132

Parlow, Matthew, 134-135 Patient Protection and Affordable Care Act, 7, 58 Pelosi, Nancy, 119 Perry v. Brown, 121 Peterson, Carolyn, 123. See New York, Ithaca Pennsylvania, 27, 90-91, 153, 158; Hazleton, 89, 96, 99, 148-150, 161-167; Philadelphia, 23-24, 2732, 78, 90. See Barletta, Louis. See immigration, punitive local policies Popular discontent, 6, 62, 81, 189; and local responsiveness, 62, 189 Popular sovereignty, 56-57, 80 Professional and Amateur Sports Protection Act, 86 Proposition 8 (California), 120-121, 140. See LGBT activism, samesex marriage Proposition 13 (California), 54. See local revenues, property taxes. See also local revenues, tax and expenditure limitations Proposition 187, 147 Public policy: “bottom-up” policy diffusion, 91; diffusion, 91-92, 101, 107, 121-125, 140, 182, 188, 190, 192; innovation, 7, 71-72, 80-81, 91-93, 134, 187; laboratories 7, 81, 91-92, 185, 187. See messiah mayors Reagan, Ronald, 3, 50-51, 58, 100, 174-175, 191; devolution, 51-52, 63, 74, 77; New Federalism, 50, 58, 77 Reynolds v. Sims, 48; and the end of federal urban programs, 50; and legislative professionalization, 48, 51, 59; and reapportionment, 48, 59; and suburbanization, 50 Rehnquist, William H., 58 Roberts, John G., 58 Roosevelt, Franklin D., 45-46. See New Deal programs Sanctuary City Movement, 3, 107, 111, 148, 151-153, 161-162, 169,

Index 225

174, 177-178; as reported by the OJJPAC, 153. See foreign policy activism Second-order devolution. See devolution Shields, John, 122-123. See New York, Nyack South Africa. See foreign policy activism Spitzer, Eliot, 123 State-level activism, 9, 85, 93; motivations for, 93; the “power of the servant,” 9, 61-62 Suburbanization, 47, 50, 69, 75 Tax and expenditure limitations, 54, 99. See local revenues. See Proposition 13

political machines, 33-37, 55; modernization, 29-30; and immigration, 24-29, 32-35, 158159, 165-166; and repopulation/resurgence, 10, 70, 82, 197 Urban reform: and the Home Rule movement, 37-38, 57; and good government groups, 32; and the strengthening of mayoral position, 38. See urban development, political machines U.S. Advisory Commission on Intergovernmental Relations, 200-201 USA PATRIOT Act, 3, 7, 88, 91, 94, 101-102, 107, 152, 160. See foreign policy activism

United States Conference of Mayors, 46-47, 59 Urban development: and the American Revolution, 23-27; colonial cities, 22-26; industrialization, 24, 29-30;

Washington, 124-125, 139, 149, 159; Greg Nickels, 124; Seattle, 124 Washington, D.C., 125, 181 West, Jason, 122, 133; Hebel v. West, 133. See New York, New Paltz

About the Book

When state and federal governments intrude, abdicate responsibility, or prove unable to respond to local needs, how can cities fight back? How can they promote and defend their own interests? Addressing these questions, Lori Riverstone-Newell explores the emergence of local policy activism and its impact in a number of state and federal policy arenas. Lori Riverstone-Newell is assistant professor of politics and government at Illiniois State University.

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