Are the legislatures of local governments too small? Once one looks beyond some major cities, one sees councils, boards, and commissions that have, mostly, fewer than ten members. The Census Bureau’s most recent comprehensive study (1992) on the size of general-purpose local legislatures gave an average size of four members, and a less comprehensive 2018 survey by the International City/County Management Association reported that 90% of these bodies have seven or fewer members. This can be contrasted with an average U.S. state legislature of about 150 members, and a global average of 182 members. American local legislatures are an outlier—they are micro-legislatures.
I think we should be concerned about this, and the basis for my concern is the subject of a forthcoming law review article: Rightsizing Local Legislatures. It builds on important recent work on the nature of local legislatures by Profs. Kellen Zale and Noah Kazis, who, respectively, assessed the professionalism and the unicamerality of these institutions. My new piece focuses on the size of their membership, and argues that local legislatures are so small that they are defective with respect to both descriptive representation and deliberative democracy. Four to seven seats in a lawmaking body cannot be inclusive of the diversity of interests in a modern, pluralistic society. The result is that enacted legislation may fail to account for minority viewpoints, and therefore be more extreme, or that minorities may perceive exclusion from the process even when their policy preferences are enacted. In the paper, I spend a lot of time unpacking the political theory behind these claims.
But these theoretical observations have practical implications. Consider a few potential examples of the phenomenon that I discovered (although I am eager to hear of any examples that readers could point me to).
Local micro-legislatures have successfully waged war on student populations throughout the United States, passing anti-student ordinances aimed at reducing or prohibiting student rentals and the partying that takes place in and outside of them. Along these lines, a number of micro-legislatures in localities with student populations have created ordinances prohibiting the use of upholstered couches on porches. The couch ban enacted by Ann Arbor, Michigan (home of the University of Michigan) in 2010 illustrates the students’ political powerlessness well. The undergraduate population of the university is about 30,000, and the total population of Ann Arbor is about 120,000, yet the city’s 11-person legislature at that time did not have a single student member. Shut out of the legislative deliberations, their only recourse was to protest through their Student Assembly.
Regarding perceptions of exclusion, the best example is that of Black communities and local policing policy. Consider that at the time of the killing of Michael Brown, the six-member city council of Ferguson, Missouri had only one Black member while the city’s population was two-thirds Black. In a study by Demos based on 2011 municipal survey data, the think tank reported that there were five respondent cities that were majority Black in population and had zero Black legislators. These cities all had micro-legislatures of either five or six members. These are the most extreme cases, where there was complete non-representation even in the case of a majority population group. But the phenomenon of underrepresentation is generally observable. Demos summarized the data by concluding that Black residents of the respondent localities were underrepresented in their local legislatures ten times more often than were white residents. How can those who are most affected by policing be able to themselves affect policing if they don’t have seats at the table when policing policy is made? And how could such exclusion go unnoticed?
As localities increasingly become sites of ideological contestation projected from national political parties, local legislatures’ small size can also function to shut out partisan minorities from having meaningful voices. The Los Angeles City Council has 15 seats, with 14 held by Democrats and one by an independent; 20% of the population of Los Angeles, though, is registered as Republicans. In the borough of Smethport, PA (population about 1,600), the eight-person council is all Republican even though 30% of the borough voted Democratic in the 2020 election. In such “solid Blue” or “solid Red” localities, the opposing party may have no representation (or no meaningful representation) on a local legislature despite the party’s substantial presence in the citizenry. In November, 2021, the seven-person micro-legislature of the city of Lebanon, Ohio (population approximately 21,000), voted unanimously to “outlaw[] abortion” within city limits. The only Democrat of the seven legislators (and the only woman) resigned before the vote in protest, leaving Lebanon’s substantial minority of Democrats (likely at least one quarter of the population) without representation. Her resignation statement illustrates well the alienation a minority party can feel when a micro-legislature impacts representation in a locality: “There is a core group of people who have hijacked the council to force their personal, political and religious views on the entire citizenship of Lebanon.”
What can be done about this? One obvious answer is to dramatically increase the size of local micro-legislatures until they conform to state and national standards. But this may be too extreme—at least in the short term. In my view, one immediate change that should flow from these observations is a more vigorous preemption of micro-legislative ordinances. The most significant criticism of local preemption is that it nullifies the democratic will of a subsidiary political community, but this critique is premised on the comparative democratic bona fides of the local law. When local law comes from a micro-legislature, such a premise is undermined. It is the 150-person state legislature that is comparatively more democratic and representative, thereby making preemption less objectionable.