Abstract
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Unquestionably, local government is the area in which most U.S. citizens actually come face-to-face with government workers: municipal police officers or grade school teachers. Local governments provide most people with their drinking water, their trash pickup, their fire safety, their building permits and business licenses, their basketball and softball leagues, and even the ability to get their pets neutered, tagged, and adopted, among many other things. In designing and delivering these services, there is a ground assumption that the choices made for the amount, level, or emphasis of services are the expression of local preferences, community mores, and homegrown values.
This assumption has considerable truth. While federal programs may incentivize, constrain, regulate, or size local initiatives, most of the choices on what to do, and how to do it are made by local representatives. Nevertheless, this truism is opposed by a counterfact that underlies most of U.S. government: local authority below the level of state power is not discussed in our founding documents, mentioned in our constitution, included in our history, or given solid legal standing. In some respects, local control is a convenient “legal fiction” that has been enshrined in our history and incorporated in our system of government operations through a device known as home rule.
Home Rule and Municipal Takeover
The article by Ashley Nickels presented in this issue of the State and Local Government Review’s Governance Matters section is about the development of and threats to that legal fiction—a fiction that enables and empowers our manner of governance. The Nickels’ piece lays out how two differing views of the role of U.S. local government have been present in our system since its inception and how one point of view has been given preponderance over the other, though both continue to influence the operation of local government. These points of view are well documented in other important works, as well (Krane, Rigos, and Hill 2001). The inferior view gives local authority some foundational independence and original importance while the dominant view sees it as derivative and dependent at best.
More importantly, the Nickels’ piece lays out a framework for approaches by states to undermine and overcome home rule and intervene ever more directly in local affairs by appropriating local autonomy in a sort of hostile “municipal takeover.” Clearly, as the Nickels’ article shows in the cases of New Jersey and Michigan, not only are states well within their rights to do this, but they tend to expand existing constitutional or statutory authority to do so through continued legislative action. Nonetheless, even when based on genuine justifications like worrisome fiscal deficits or administrative mismanagement, the reduction in local autonomy can seem wrong and provoke local citizen reaction and dissatisfaction. As the New Jersey and Michigan cases imply also, the strength of this reaction may be proportional to the degree of intervention and the scope of reduction of representation in local decision-making.
The Paradox of Centralized Government in the United States
A central paradox of American government is that most citizens understand the need for and benefits of functional and effective central government yet remain suspicious and fearful of its powers. This paradox of distrust of centralized authority and desire for its benefits is both historical and actual. The historical roots run deep—from the founding of the nation as a rejection of British occupation to the U.S. constitution which both preserves the importance of the states through the Great Compromise and guards against the potential power of majorities using centralized power to quash minorities though the Bill of Rights. It is worth noting that one of the founding documents of American government, the federalist papers, was written because of a need to persuade people to vote for more centralized government. Nonetheless, the paradox has currency as well historicity. When asked about their trust for government in a recent poll, only 19 percent of citizens say they trust the federal government to do the right thing at least most of the time and this number has been declining for almost ten years (Gallup 2016). Yet, 52 percent of them have at least a fair amount of trust in federal government departments to carry out their functions, and majorities want even more from their federal government in areas ranging from education to combating terrorism (Gallup 2016; Pew Research Center 2015).
Trust and Distance: Proximity and Participation
Public appraisals of trust in federal, state, and local government have been conducted as far back as the 1970s in surveys conducted annually by the now defunct Advisory Commission on Intergovernmental Relations (ACIR) (Cole and Kincaid 2000). Nationally, citizens do trust their state governments more than the federal government, although this varies by state. Recent polling reports 62 percent of citizens, overall, have at least a fair amount of confidence that their state can handle problems (McCarthy 2014). Yet, these recent polls indicate that trust in state government has been eroding just as it has in the federal government. In contrast, citizens have expressed their highest levels of trust for their local governments for some time (Kincaid and Cole 2008). Current polling indicates that about 72 percent express confidence in them. This level of confidence has remained fairly level over the last forty years and has increased somewhat both historically and recently (Gallup 2016).
In general, Americans trust their local governments more and more steadily than either their state or the federal government. Possibly, this is due to perception of greater transparency at the local level due to smaller size and frequency of citizen interaction. Likewise, it could be put down to a general distrust of elites by Americans, with those elites that are perceived as “far-off” engendering less trust (Tierney 2014). In short, distance from the government in question affects both the frequency and number of benefits received from it by citizens as well as their familiarity with and expectations for its operations and reliability. It is not the centralization of functions that affects citizen trust as much as it is proximity and their participation. At least one writer has contended that if citizens knew how truly innovative their local governments are, they would have even higher confidence in them (Goldsmith 2015).
The Paradox of Local Government Home Rule
It is important to note that the paradox of U.S. centralized government plays out in another way than the historical and actual tension between states’ rights, and the federal government mistrust of the effects of centralized sovereign authority on the rights of citizens is not confined to the federal government and notions of states’ rights against it. It plays a significant role at the local level also. The evolution of the home rule doctrine and local opposition to state-imposed municipal takeover are clear evidence that the paradox of centralized government in the United States takes form at the local level as well.
In addition to the general paradox of centralized government in the U.S. context, there is a corollary paradox specific to local government home rule. Citizens support the notion that, when needed, local governments should be helped by the states on which they depend and should benefit from supervision and instruction by the states. Likewise, they understand the gains from state regulation of identical services to take advantage of economies of scale and the efficiencies of coordination. Nonetheless, at the same time as desiring these advantages, citizens are less desirous of an active role for the state in setting their local priorities, managing their finances, and implementing their services in order to achieve the purported benefits. The state should aid localities, but choices about local matters are best made locally.
It is this “Paradox of Home Rule”—that localities are both dependent jurisdictions deserving and in need of state aid and independent jurisdictions that should be as fully autonomous as possible and exercise governance of this autonomy through local representation and decision-making—which is responsible for the ongoing tension between states and local governments. This tension is seen in the evolution of the limits of home rule doctrine in the federal and state governments and the continued pushback and challenge to these limits by local authorities. It is most starkly seen in the resistance by local forces to state municipal takeover which is viewed as a suspension of the local right to self-governance. In the U.S. governance context, although the results of local governance can be thought bad, local governance itself is considered an unmitigated good.
Thinking about Approaches to Resolving the Paradox of Home Rule
Clearly, the paradox of centralized government in the United States is foundational. It is baked into the cake of our constitutional system of state sovereignty and individual rights. This tension gives a great deal of dynamism to our system of governance, as state and federal conflicts get worked out over time.
In contrast, local governments have much weaker standing in the interplay of forces between state authority and local control. It should be remembered that municipalities are as much like private corporations—in fact, they are municipal corporations—as they are like government. They differ from corporations in that their revenues come from taxes and not sales and they have coercive rather than market power. Nonetheless, they are like private corporations in that their charters and licenses to operate come from the state—they have no sovereign existence.
Perhaps, it would be desirable to strengthen the position of local governments in this relationship. Doing so could change for the better collaboration between states and localities, most importantly municipalities, and reduce potential resistance to state intervention by clarifying at the national level the important standing of local government in our system of governance. Three approaches to achieve this end suggest themselves, one radical, one traditional, and one innovative.
Radical: Constitutional Amendment
The most extreme way to reconfigure the role of localities in the U.S. system of governance is to go back to the source documents and reflect their current importance by including a mention of them. Of course, this means amending the U.S. constitution. This could take the form of an amendment that, like the Tenth Amendment reserving powers to the states, makes clear that some powers—those not mentioned in state municipal charters, perhaps—are reserved to municipalities. Likewise, it could reflect the authority of locally elected representatives in decision-making about local matters, thus reflecting concerns about local representation. In effect, this means a specific, albeit limited, grant of sovereignty to local governments that would be independent of state intervention. Clearly, doing this would run counter to much of U.S. history and tradition and so it would be a radical solution. In addition, it is radical because amending the U.S. constitution is a difficult task. It can be done in two ways only. The first is a two-thirds vote in favor by Congress and subsequent affirmation by three-quarters of state legislatures. The second is a constitutional convention. Doing this would make home rule a constitutional reality and eliminate the possibility of municipal takeover completely.
Traditional: Financial Incentives
A more traditional, policy-based method of making home rule better protected, more standardized, and harmonized across jurisdictions, would be to use the federal government’s power to issue block grants to municipal governments. The idea is take some burdens from the states in exchange for their meeting promulgated standards on local autonomy and representativeness in the context of state intervention in localities. Grants for matters in which the federal government has clear interest, but which are clearly local, say election equipment, civil rights and public safety, or municipal employee health insurance, could go to cities whose states guaranteed the requisite level of home rule and municipal takeover safeguards. Attempting to resurrect block grants, a mechanism to help local governments that has fallen into disuse, to address the home rule paradox clearly is in keeping with traditional policy solutions. It is a traditional regulatory approach to addressing a state and local situation. If there was a national constituency for this solution, the difficulty in achieving it would be twofold: getting Congress to act on it and paying for it—the latter factor having doomed block grants in the first place.
Innovative: Administrative Organization
Another way to address the home rule paradox is through the sort of innovation that is so often seen in both business and government: extending administrative mechanisms to a new purpose; in this case adding a department, commission, or authority of local government to the list of existing federal government agencies. This would have the effect of elevating the importance of local government to the national level, allow for the promulgation of standards and the proffering of assistance as done in, for example, education or homeland security, and would simultaneously provide federal standing to intervene in cases of municipal takeover. A federal level agency for local or municipal government would differ from those that are clearly functional or subject matter oriented such as Health and Human Services or the Department of Energy, but it does fit squarely in the mold of a department like interior, or of commissions ranging from Securities and Exchange to Nuclear Regulatory. It is in keeping with the way the federal government seeks to govern and regulate more general policy areas and activities. Although not costless, it can be done in an economical fashion. Moreover, it is a response that may be favored by citizens, over 60 percent of whom do not favor elimination of departments of government including the Internal Revenue Service and only a third of whom want to limit government to basic functions (Newport 2016).
Conclusion
At a time when the federal government is able to provide less for the states and less for its citizens, more has fallen on local governments. Their responsibilities have increased since the economic downturn and many municipalities still have not recovered from the reduction in revenue and increased load on services. It is more than fair to grant that cities need help in carrying out their responsibilities, but it may not be fair to assume that they need to surrender their authority in exchange for this help.
Thus, there is an inherent dilemma in the situations that result in state-level municipal takeover legislation and action: a need for assistance by a locality does not necessarily indicate a need to limit autonomy. Unfortunately, assumed protections, like home rule, against state reductions in self-government are illusory and can be set aside pretty much as a state desires. With citizen trust far higher in local than in state or federal jurisdictions, the unprotected status of localities does not serve national government well and is a national problem. Yet, this situation may not be remediable at a national level: the parties interested in addressing the paradox of home rule, local governments, are the least powerful and least independent players in the system; moreover, the perceived imbalance between states and localities may function in reality as an important check and balance in the U.S. system. Perhaps it is somewhat paradoxical in itself to suggest national action to address a paradox of local government, but maybe it is just another example of the often inconsistent and paradoxical framework of U.S. governance.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.