In late July, a Florida county circuit court struck down some of the penalties added in 2011 to Florida’s law banning local governments from regulating firearms. Those penalties included the ability to remove local elected officials from office, fining them up to $5,000 and suing them personally while prohibiting that government funds be used for their defense. This ruling, more than a year after the mass shooting at Marjorie Stoneman-Douglas High School, did not address the underlying ban on local regulation of guns. This ruling may seem like a watered-down response to the wave of youth activism the Stoneman-Douglas shooting unleashed, but Florida activists see it as a victory. Florida was second only to Texas this year in the number of preemption laws introduced into the state legislature. Those bills circumvent local decision-making authority by prohibiting local laws on certain topics.
At the end of July, the Local Solutions Support Center issued a report analyzing how preemption bills, which “pre-empt” local authority in favor of a statewide law, have gained ground in state legislatures across the country. For example, 43 states ban local efforts to regulate firearms or ammunition. 15 states prohibit communities from banning plastic bags. According to the LSSC report, 35 preemption laws were introduced in Tallahassee this year while Austin saw 62. The report notes that while Republicans get heat for preemption bills, they aren’t alone. Maine and Oregon, both “blue states,” also passed laws undermining local control this year.
Holly Parker is all too familiar with the frustration these preemption laws bring. Parker oversees the 12 Florida chapters of the Surfrider Foundation — an international group dedicated to preserving and protecting coastlines — which she says conduct “countless” beach cleanups. “Every single beach cleanup, [the volunteers] find the same stuff. They find single-use plastic bags. They find cigarette butts. Cigarette butts are the number one item. They find straws. Everything they find, the legislature has either preempted or attempted to preempt,” Parker says. Such legislating is “hugely demoralizing for local folks,” Parker says. Yet instead of giving in to dejection, a broad range of Florida groups have come together to fight bills that gut local control.
“It’s really interesting because some of these groups, if you look at local elected officials and groups like mine, we butt heads, but we all agree that we have a basic, fundamental right to advocate for those issues at the local level,” says Ida Eskamani, the public policy director of the Florida Immigrant Coalition, one member of the loose coalition that came together to fight against House Bill 3, which would have prohibited local regulation of businesses. The sponsor of that bill said it was a response to Key West’s attempt to ban certain types of sunscreen because their ingredients harm coral.
“The more you preempt, the less authority all of us have to move any agenda we might care about. So, transcending the individual issues, so coming together to think through strategy has really made a difference in a number of places,” says Kim Haddow, director of the Local Solutions Support Center.
The Local Solutions Support Center’s report attributes the preemption trend to two factors: First, the Supreme Court’s 2010 Citizens United ruling, which held that political spending is protected by the first amendment, which allowed corporations to spend unlimited amounts of money on political campaigns. The second factor came when Republicans gained control of 25 state legislatures, over the 14 they had held previously in the 2010 mid-term elections. 21 of these states also voted for Republican governors, which gave the party control of two branches of state government. These conditions, the report says, made it possible to implement “the anti-regulatory, pro-industry model bills developed and disseminated by the American Legislative Exchange Council (ALEC) – some of them dating from the eighties.”
Rebecca O’Hara of the Florida League of Cities says she says two ways the preemption trend appears. The first she calls “partisan preemptions or policy-driven preemptions.” O’Hara says these bills focus on “national wedge issues such as sanctuary cities and minimum wage issues.” She says cities and counties try to end the federal and state “stalemate” and adopt their own policies on these and other matters, only to be thwarted by state legislatures.
The other kind of preemption O’Hara sees she calls “special-interest driven.” In that scenario, she says, “a special interest group, usually a business group that is frustrated by a specific situation in a specific city or county…takes that to the state legislature and has a state remedy to address a local problem. It’s legislation by anecdote.”
Some preemption laws, however, go beyond barring local communities from deciding what rules they want to live by and set harsh penalties for the public officials who decide to disobey. For example, Florida’s Senate Bill 168, which became law in mid-June, mandates that local governments consent to detaining individuals on behalf of Immigration and Customs Enforcement (ICE), but it also allows the governor to file charges against local officials who refuse to comply.
There is some hope on the horizon for anti-preemption activists. Haddow points to the recent repeal of a ban on local broadband service providers in Arkansas. Republican women led the push to repeal that ban, which Haddow sees as a sign of hope for bi-partisan action. Meanwhile, Parker notes that plastic bags and palm fronds are clogging south Florida sewers and flooding streets. Parker hopes that local communities angry about plastic-bag-induced flooding will push their lawmakers to reconsider their ban on local regulation of bags.
“I have seen firsthand legislators who have changed their minds on these issues,” Parker says. “I won’t say it’s a lot of them, but I have seen a handful, who just didn’t think it was an issue, who didn’t think preemption was an issue, who didn’t think plastic was an issue. But when they hear compelling testimony from their local Girl Scout troop or from these people who live in their community and they tell you exactly which beach they pick up and what they find, they find it powerful and persuasive.”
Zoe Sullivan is a multimedia journalist and visual artist with experience on the U.S. Gulf Coast, Argentina, Brazil, and Kenya. Her radio work has appeared on outlets such as BBC, Marketplace, Radio France International, Free Speech Radio News and DW. Her writing has appeared on outlets such as The Guardian, Al Jazeera America and The Crisis.