Our Path Forward: Restoring Local Control to Take the High Road

Wisconsin should restore and expand the power of local governments to take the high-road. The state should set floors (minimums) on corporate regulation, taxes, education and environment standards, land use, health and safety, and procurement goals, not ceilings (maximums), and impose no unfunded mandates on local government.

What’s the problem addressed?
One hallmark of the Walker administration has been its widespread and unrelenting attack on the ability of local governments of all kinds (counties, cities, towns and villages) to take the high road in their communities. It does so both by imposing new restrictions on local government action and by imposing unfunded mandates on them. The Legislative Fiscal Bureau keeps careful of these restrictions and unfunded mandates, as published in its biennial Comparative Summary of Provisions of different state budgets. In the first four Walker budgets (i.e., not counting the one just passed), there were 185 of them. They range widely over local control over big issues like taxes or other revenue, labor relations and employment conditions, land use, environmental protections, water conservation, transportation, public safety, energy efficiency, regional cooperation, and solid waste disposal – all areas of local concern and knowledge and historically significant local control.[note] These are summarized in an 18 January 2018 a memo, on LFB stationery, from its Director Bob Lang to Representative Katrina Shankland on the subject of “Unfunded Mandates and Items that Would Restrict Local Control (available from OWR). [/note] 

This attack on local control, like everything else Walker, is utterly unoriginal. It follows the playbook of the corporate-right American Legislative Exchange Council (ALEC), which has promoted state low-road policies by forcefully eliminating through state preemption the possibility of local opposition to them.                                                  

Though never a “home rule” state – with constitutional guarantees of local power impervious to state interference[note] National League of Cities (2018), City Rights in an Era of Preemption : A State-by-State Analysis, 2018 Update.  [/note] – until recently Wisconsin local governments enjoyed a broad presumption of autonomy in governing their own affairs. In the first quarter of the last century, the state constitution was twice amended, in 1912 and 1924, to secure this presumption. That still stands: “Cities and villages… may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.”[note] WI Const. art. XI, § 3, cl. 1.[/note] As interpreted by our Supreme Court, that means that, unless some local law contradicts the spirit of a state one of general applicability, locals should be free to manage their affairs.[note] Silverman, C. (2016). “Municipal Home Rule in Wisconsin: Home Rule #59R – 2.”[/note] 

But, especially now under the Kangaroo court Governor Walker has constructed, the legislature has had its way with home rule by repeatedly passes laws that passing laws simply forbidding what were once utterly common local practices. They’re imposed straightjackets on local initiative, and ceilings on permissible improvement. 

How OWR’s Proposal Addresses It
For greater certainty in the future, our proposal probably requires a constitutional amendment. This would clarify that “Wisconsin’s ‘uniformity clause’ shall be understood only to impose floors on high-road local action, not a ceiling to it” and also that “the state shall not impose unfunded mandates on local government.”  These two simple additional clauses would render all the obnoxious Walker administration interference with local government null and void, and free up the field of local government again as one of constructive high-road experiment.

Who Else is Doing This?
Across the country, as already noted, right-wing corporate forces have passed laws preempting progressive local law.[note] National Employment Law Project. (2017). “Fighting preemption: the movement for higher wages must oppose state efforts to block local minimum wage laws.”[/note] But through the county, local governments, often allied with state forces not already captured by the corporate predators, are fighting back.[note] For a review, over a wide range of policy areas, see 2016 Harvard Law and Policy Review 10 (2)[/note] For those who understand that state and local government is where most governing in America actually takes place, this is chief domestic battleground for democracy. Wisconsin, with a new government, should join that fight. 

Why Not Wisconsin?
In the past, Wisconsin was a known for a high degree of progressive local government control. Most of the policy and program innovations the state was historically known for came from some community figuring out a better way to solve a problem, testing it, having others copy them, and only then becoming state legislation. It was a “progressive federalism” of state floors not ceiling on local experiment. It is long past time we got back to this future.