How Preemption Laws Are Changing the Landscape for Local Government Affairs

With bipartisanship hard to find at the federal level, resulting in long, drawn-out negotiations, many advocacy groups have found success representing their interests at the local government level.

However, a growing trend of preemption laws is poised to reshape the role of local governments, which would impact advocacy groups, industry associations, and even larger organizations.

This primer covers everything local government affairs teams need to know about the history of preemption, the latest developments, and digital advocacy strategies to help your team effectively engage with the ongoing debate about local government authority. Let’s dive in!

What is Preemption?

Preemption occurs when a higher level of government restricts or withdraws the authority of a lower level of government to act on specific issues. It’s a tool that has been used by both of the major political parties in the United States.

Traditionally, preemption was used to create policy floors, such as statewide minimum wage standards that local governments weren’t allowed to fall below. These laws helped guarantee civil rights to all residents of a state, regardless of which city they live in. They also gave communities the freedom to choose to enact higher standards in response to their residents’ needs.

Preemption is still used for this purpose today. A recent example of this comes from Connecticut. In 2021, state lawmakers passed HB 6107, which changed the state’s zoning for housing laws in an effort to alleviate its housing shortage. One of its key provisions prevents towns from enacting zoning regulations that cap the number of multi-family housing units. Since zoning is one of the most important powers reserved for local governments, this state law had a direct impact on local authority.

The Current State of Preemption Bills

Lately, some state legislatures have been introducing a substantial number of preemption bills aimed at curbing the autonomy of cities and other local governments. In contrast to earlier preemption bills that set minimum standards but allowed communities to establish more restrictive local laws, these bills seek to limit the ability of local authorities to create ordinances that are more restrictive than state laws, effectively creating policy ceilings. Many of these laws focus on policymaking around labor topics, public health, and social issues such as transgender rights and racism in schools.

The Local Solutions Support Center, which advocates for local democracy, reports that more than 650 preemption bills have been introduced in 2023 across the nation.

For example, the recently passed House Bill 2127 in Texas bars municipalities from creating local ordinances that go further than what’s allowed in state law in areas such as labor, natural resources, and finances. It’s unclear how many existing local laws will now be nullified under this new state law.

Supporters of the Texas bill, including Gov. Greg Abbott, say the goal is to create a uniform policy environment statewide to make the state more business-friendly.

Gov. Abbott spoke about the bill during a 2023 legislative session recap event hosted by the Texas Public Policy Foundation, according to reporting by the Texas Tribune.

“We did across-the-board regulatory preemption so that local governments — the city of Austin, for example — are not going to be able to micromanage businesses in the state of Texas, especially driving up the costs for local businesses,” Abbott said. “We are going to have one regulatory regime across the entire state on massive subject areas that will make the cost of business even lower, the ease of business even better.”

But advocates for local control say that it’s possible to create a business-friendly regulatory environment without forcing communities to give up their powers of self-government.

“It’s not about abdicating local control, it’s about finding ways in which to reasonably regulate certain things and still have the ability at the local level to work within the system to have some control over our destiny,” says John LaMacchia, Director of State & Federal Affairs with the Michigan Municipal League.

Preemption Impacts Local Governments’ Ability to Design Local Solutions

Cities and local governments often serve as laboratories for policy experimentation, enabling innovative approaches to emerging issues. While preemption laws can help create a simpler regulatory environment, opponents say it comes at the cost of stifling policy innovation. Limited in their power to create laws related to local environmental, social, and economic challenges, local governments find it harder to implement creative solutions tailored to their communities’ strengths and needs.

“When legislation is utilized to preempt local control, it impedes our ability to capitalize on the unique qualities that make up each individual community,” LaMacchia says.

One example of the challenges local governments face when trying to solve local problems with limited freedom to experiment comes from the movement to expand broadband access to rural communities. Rural areas have long been left out of broadband service because the economics don’t make sense for internet service providers.

While President Joe Biden has made it a priority to expand high-speed internet access through major funding allocations in the American Rescue Plan Act, one of the biggest barriers to expansion in rural areas is the host of state laws that prohibit community broadband. Although the FCC considers municipal broadband to be a best practice to reach communities unserved or underserved by high-speed internet, 16 states still block it through preemption laws.

Digital Advocacy Strategies to Make Your Voice Heard About Preemption

Preemption laws have been rapidly gaining momentum in state legislatures since the beginning of the COVID-19 pandemic. Regardless of your position on a specific preemption law, there’s a lot to gain from advocating for your issues at the local and state level. Here are some digital advocacy strategies that can help you make sure your voice is heard at the local level.

Strengthen Relationships and Coalitions

One of the most impactful ways to advocate for your cause is by building strong relationships and coalitions. Digital advocacy tools like Curate can be used to find contact information for local government officials and stay informed about ongoing conversations related to preemption. By connecting with relevant stakeholders, including community organizations, advocacy groups, and other local government entities, you can amplify your collective voice and foster solidarity.

Tip: Actively engage in discussions and forums where the impact of preemption is being debated. Curate can help you tune into these conversations when they’re happening at the local government level, allowing you to contribute your perspectives and build relationships with like-minded individuals and organizations.

Educate and Mobilize the Community

Educating and mobilizing the community is vital in raising awareness about preemption and rallying support for your cause. To effectively engage your audience, it’s essential to understand your demographic and tailor your message to address their specific concerns related to preemption. Tools like VoterVoice enable you to reach your supporters directly, providing a platform to educate them about the issue and empower them to take action.

Tip: Use online petitions to amplify your message and garner attention from representatives. Share these petitions through social media channels, email newsletters, and other online platforms to reach a broader audience and encourage community members to add their voices to the cause.

Monitor State Legislative Sessions

Since preemption decisions occur at the state level, it’s crucial to monitor state legislative sessions and engage with state legislators whenever preemption laws are on the table. Tools such as FiscalNote State, a state legislation tracking and regulatory monitoring platform, can be immensely valuable in keeping up with the latest developments related to preemption in state governments.

Tip: Use FiscalNote State to track relevant bills and monitor the progress of preemption-related initiatives. Additionally, use the platform to reach out to and track your engagements with state legislators to express your concerns, share your insights, and advocate for your position on local decision-making.

Successfully Navigate the Changing Political Landscape With FiscalNote’s Solutions

There’s no question that the latest wave of preemption laws will have a major impact on the advocacy landscape at the local and state level. While it has the potential to create a more uniform policy landscape, it also limits the ability of local policymakers to respond to concerns.

Stay informed, take action, and adapt your advocacy strategies with Curate, FiscalNote State, and VoterVoice.