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The War on Cities & Localism All the Way Up: Conversation Between Rich Schragger & Richard Briffault

Throughout their careers, my colleagues Rich Schragger and Richard Briffault have explored the many ways in which localism is not simply federalism refracted at a different level of governance. In a forthcoming essay, Localism All the Way Up, Professor Schragger takes this discourse one step further, arguing that conflicts between cities and states reflect the actual state of American federalism, with rising metropolitan political affiliations replacing traditional regional patterns, broader tensions growing between economically dynamic urbanizing municipalities and rural counties increasingly left behind, and consequent values bifurcation between low and high productivity places. State-city conflicts thus explains the stridency of national political rhetoric, purported divisions of the country into “real” and “fake,” the demonization of the big city (and all things “cosmopolitan”), and the invocation of “states’ rights” to oppose municipal power.

The dialogue below—a format for reflection that we are going to experiment with here at SLoG—reflects on the history of American anti-urbanism, ways in which the most salient political cleavages we face today are along the urban/rural divide, and how emergent contemporary localism centered on metropolitan-scale conflicts now drive national political life, with so many state legislatures places of structurally entrenched minority power - and what might be done to shift this dynamic.

What is the war on cities and how have we arrived at this moment in localism? Is this only an issue for our largest cities and only a partisan issue? What drives state hostility?

Rich Schragger: In recent legal literature, the “war on cities” is the increasingly aggressive and partisan overrides of local law by state legislatures and governors. I’ve called this “the attack on American cities”; Richard and others have called it “punitive” or “hyper-preemption”. Recent examples include legislatures or governors outlawing local public health regulations in response to COVID-19, legislation that punishes cities for reducing their police budgets in response to defund the police campaigns, and voter suppression bills that remove local election officials and eliminate their authority to regulate elections. These kinds of laws join a host of others eliminating city authority to regulate in disparate areas such as labor, anti-discrimination, and environmental law.

This war on cities is, as many have pointed out, a red-state/blue city phenomenon, but it is not exclusively so. The many conflicts between New York City’s Mayor Bill de Blasio and the (now-disgraced) Governor, Mario Cuomo, highlight the fact that even when cities and states are governed by members of the same party, state-city conflicts are perennial. Historically, the kinds of up-state/down-state tensions exhibited in New York are emblematic. On the one hand, rural and non-urban communities worried about the power exercised by the large cities, especially during industrialization. On the other hand, city officials and their citizens sought self-rule as a way to gain independence from overzealous rural-dominated legislatures. State constitutional home rule reforms have been one effort to address this imbalance. The one person, one vote revolution, which came later in the twentieth century, was another response to the problem of urban under-representation.

That is why I argue that blue state/red state conflicts that seem to characterize our current federalism are really a manifestation of the city-state tensions that have existed at least since the early part of the twentieth century. Within-state variation in partisan voting is actually at a high point as compared with between-state variation, with the urban-rural split being the most salient political cleavage of our time. With the partisan divide tracking urban-rural, intra-state city-state conflicts are in fact the defining feature of our national politics. The Republican Party’s cultural and political hostility to cities is simply the city-state conflict “gone national.”

Richard Briffault: There is much to agree with in Rich Schragger’s characteristically penetrating and eloquent critique. But there would be little point in breaking into blog (slog?) print just to say he’s right (although it’s tempting). So, let me focus on his metaphor – the “war on cities.” There may be a “war” going on, but cities are only one of a number of battlefields, not the focus of the war itself. Counties are also a battlefield. The wave of new restrictions on – and penalties for – local efforts to extend democracy by facilitating voting are targeted on the county boards and county officials who run our elections, not cities. And while some of the counties are the homes of major urban centers, many are much smaller, consisting of small towns or suburban and rural areas. School districts are another battlefield. The battle over mask mandates—exemplified by the fight currently moving through the Florida courts—is being waged by, and on, school districts, again including rural and suburban districts as well city ones. So, too, the battlefield over the teaching of “critical race theory” is school districts,

The war that Rich addresses is not about cities, although the battle lines will often track the city-noncity divide. It is about party, ideology, politics, and power. Like innocent civilians in wartime, the cities just happen to be in harm’s way.

Classic state constitutional principles - however contested - insist that localities are creatures of state government. Why wouldn’t it be more promising for the more aggressive states to simply organize their municipalities (and patterns of municipal governance) in ways that ensure state supremacy and control? Why instead undertake the more politically perilous attack on cities already established and empowered through municipal home rule other mechanisms?

Rich Schragger: Most states have already organized their municipalities in ways that ensure state supremacy and control. Home rule grants in state constitutions provide little in the way of immunity from preemptive state laws, so legislatures can pick and choose when to intervene in local affairs with a fair amount of impunity. And there is little to prevent state officials from threatening to withhold monies from recalcitrant cities, as has been done with local mask mandates and in other areas. States have also threatened to remove local officials, reminiscent of the “ripper” bills of the past. For state legislatures, home rule is a relative inconvenience, though it is helpful as a political matter because state officials can engage in “selective localism”--intervening only when politically expedient, but not taking on the baseline responsibilities for providing for the health and welfare of local citizens. Gerrymandered state legislatures and winner-take-all districts combined with the geographical-clustering of Democratic votes in urban areas means that state legislatures are, in the words of Miriam Seifter, increasingly “countermajoritarian.”

Richard Briffault: Rich has put it well. The current legal structure in most states already assures state supremacy and control. State governments do well under the current system. In most states, they can delegate fiscal and operational responsibility for most public services and regulation—public safety, education, sanitation, land use, etc.—to local governments but then intervene whenever they want to displace local policies, add new requirements, or curtail local initiative. The events of 2020-21 demonstrate that state power goes beyond preemptive legislation, and is not attributable just to gerrymandered legislatures. Most of the state actions countermanding local efforts to facilitate voting or address COVID were from statewide elected officials or their appointees -- governors, attorneys general, secretaries of state, or executive cabinet officers. Powerful state actors don’t need to restructure local governments. They have little trouble imposing their priorities under the existing system.

To put the point in political economy terms, what is the equilibrium of this game? That is, how would you expect localities to respond to overbearing states? Defensively, through litigation? Surrendering? Accommodating/adapting in certain ways? War is the metaphor here. So what does “peace” look like and how might we get there?

Rich Schragger: There is no peace. When the anti-city party controls the state legislature, cities lose. And under our current electoral system--and despite one person, one vote--cities continue to be under-represented. Home rule also does little to protect them. The urban-rural wedge issues--mask mandates, vaccines, guns, abortion, LGBTQ rights, BLM, policing, environmental protection, religious exemptions--enhance the power of the statewide anti-city party. That party does not see any benefit in accommodating the urban voter under current conditions. Of course, shifts in statewide majorities—and here cities and urban counties do have the benefit of large populations—can result in a change of party control of statewide offices. But the anti-city party can hang-on in the legislature despite regularly losing statewide; gerrymandering and voter suppression laws are obviously intended to minimize the influence of the urban voter.

Richard Briffault: Once again, I agree with Rich. The competition over policy, politics, and power is hard-wired into the system, as you would expect in a multi-tiered democracy. As Madison explained, “the latent causes of faction are . . . sown in the nature of man, and we see them everywhere.”

Cities can seek to defend or advance their interests through litigation, state politics, and national politics. Litigation is not likely to be successful often, but there have been occasional wins. More important, is state politics. If the policies, interests, and values associated with cities and metropolitan areas spread as metropolitan areas spread, state decision-making can change. True, gerrymandering and vote suppression are real obstacles. But state-wide elections—governors, attorney generals, ballot propositions—can end-run gerrymandering, and concerted political organization can potentially overcome regressive voting rules and flip legislatures. Colorado and Virginia are good examples of how state politics can change and be more accepting of city policies. The 2020 election shows the potential for change in Arizona and Georgia – although the attack on free and fair elections in both states since then shows how hard state-level forces are willing to fight back. There is also the potential for support for city interests and city values from the national government, which can constrain or preempt the states. Battles lost at the state level can be refought, and potentially won – with the help of the representatives of more city-friendly states -- at the national level.

The “equilibrium” is not anything like “peace” but ongoing conflict. In a system designed so that “ambition must be made to counteract ambition,” why would we expect anything else?


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