How the NC Gen'l Assembly Has "Preempted" Its Cities

Barry Yeoman

Very grateful to Barry Yeoman for his political history of what led up to Pat McCrory's "bathroom bill," HB2. I'm particularly grateful for Yeoman's teaching me the term "preemption," which explains a great deal about the current frenzy of Republican "power-grabbing" by the North Carolina General Assembly. Quoting at length here, for which I apologize, but this is news to me and important. Highly recommend the full text of Yeoman's excellent article:

When I started covering the North Carolina legislature in the mid-eighties, business interests were already pushing to strip cities and counties of their powers. In 1987, Representative George Miller, a Durham Democrat, introduced a measure making it harder to remove nuisance billboards, as Raleigh's city council was trying to do. He also sponsored a bill, favored by the N.C. Board of Realtors, prohibiting local officials from "down-zoning" properties to lower-intensity use—an important conservation tool—without compensating owners.

Neither bill passed. But a strategy was taking shape: as cities took more initiative to improve their quality of life, aggrieved businesses could plead their cases to the friendlier state legislature. This tactic of defanging local governments is called "preemption." It's hardly restricted to North Carolina. And its use has burgeoned over the years leading up to HB 2.

The tobacco industry, fighting indoor-smoking regulations, helped pioneer preemption in the 1980s....

Big Tobacco made big strides initially, then lost ground as public support grew for smoking restrictions. The more enduring push came from the gun lobby, which blanketed the country with bills to stop places like Durham and Chapel Hill from regulating firearms....

Since then, preemption efforts have flourished. "Every industry, every interest group, said, 'We might not get what we want, but we can stop anything' "....

Those industries are often assisted by the American Legislative Exchange Council, a free-market advocacy group that brings together business leaders with state legislators at luxury hotels. ALEC also publishes model laws curtailing local authority, with wording that lawmakers can copy and paste.

It's no shock, then, that in recent years states have barred municipalities from regulating fracking, banning or taxing plastic bags, and creating sanctuaries for immigrants. This spring, Wisconsin outlawed county development moratoriums. Mississippi upended local regulations on companies like Uber. Arizona took away local leverage over drones and puppy mills. And Kansas passed a law preempting—in a single swoop—local policies governing rent control, housing inspections, and nutritional labeling.

As HB 2 makes clear, one focus of this push has been labor: both ALEC and the dining and tourism industries have tried to prevent local governments from regulating wages or other working conditions....

This means not just handcuffing elected officials, but also overturning direct democracy. Two years ago, voters in Orange County, Florida, approved an ordinance mandating up to seven days of annual paid sick leave for workers at all but the smallest companies. Opposing the measure were Darden Restaurants (Olive Garden, Red Lobster) and Disney. Before the vote could take place, however, the Florida legislature outlawed local employment standards. That invalidated the ballot measure as soon as it passed....

North Carolina has long used preemption, though not in an exceptional way. That changed with an off-year election [2010] that immoderately altered the political mood in Raleigh....

[The Tea Party wins of 2010 were] more than a partisan shift. The 2010 election triggered a breakdown of North Carolina's moderate consensus, which Democrats like former governor Jim Hunt and Republicans like former governor Jim Martin had shared for fifty years. That consensus favored roads, schools, and racial civility, all of which undergirded a healthy business climate.

The new legislative majority set out to dismantle that consensus: curtailing voting access, cutting education spending, and rejecting a federally funded Medicaid expansion. It slashed unemployment benefits and imposed new barriers to abortion. It repealed the Racial Justice Act, which guarded against bias in the sentencing of death-row inmates. It set into motion Amendment 1, which wrote one-man/one-woman marriage into the state constitution until the federal courts invalidated it. It redrew its own district lines to explicitly give Republicans a greater electoral advantage.

And it picked up the mantle of preemption with exceptional vigor. Never before had there been such a disconnect between the state's government and its urban areas, nor such a strong impulse to rein in liberal and even centrist cities.

This time, preemption went beyond big-picture issues like gun control. Lawmakers got personal with individual cities and counties. They tried to wrest from Asheville control of its own water system and, from Charlotte, control of its airport. (The Asheville case is currently in legal limbo.) They redrew electoral lines for the Wake County commissioners and school board (struck down by the U.S. Court of Appeals this month) and Greensboro City Council (still in court). They forced Durham to extend utility services to the 751 South development near Jordan Lake, despite concerns about water quality and traffic. [Et cetera, including, of course, the still unresolved taking away of Boone's extra-territorial jurisdiction.]