Birmingham’s recent failed attempt to raise its minimum wage from the federally mandated $7.25 per hour to $10.10 per hour — swatted down by the state legislature in a fast-tracked vote without any public hearings — was not an anomaly. It was part of a trend, one that is not exactly new but that has gotten more attention lately as many state legislatures have preempted local governments’ attempts to institute a number of different policies, from mandatory paid sick leave to protections for transgender people to use public accommodations.
The Birmingham case is now the subject of a federal lawsuit alleging that the state’s action was motivated by racial discrimination, passed as it was by an all-white group of legislators in order to nullify the decision of a majority-black city government acting on behalf of a majority-black city.
Nearby, in North Carolina, analogous events have been transpiring, and they have been showing up in front-page headlines of major national newspapers. The city of Charlotte, one of the fastest-growing in the country for several years running, passed on February 22 an ordinance that prohibited businesses from discriminating against gay, lesbian or transgender customers, adding to existing protections based on race, religion, gender or age.
Most conspicuously, the ordinance would allow transgender people to use the restroom corresponding to the gender with which they identify. This has unsettled many Republican lawmakers, who voice fears about privacy and safety; most common among these is the notion that men might take advantage of this in order to enter women’s restrooms and prey on young girls. This concern has proven potent enough to mobilize Republican voters and pundits, to say nothing of legislators. In November 2015 voters in Houston roundly rejected a referendum that would have granted such provisions to transgender people; that vote followed a pitched public-relations battle fueled by a lot of advertising money that supporters said was intended to inspire fear in people about, among other things, the safety of their children.
A month later, on Wednesday, March 23, the North Carolina General Assembly in Raleigh called a special session in order to hustle through a bill that was written specifically to overrule Charlotte’s ordinance. The bill passed through both houses of the General Assembly on Wednesday and was promptly signed into law by Governor Pat McCrory. The state bill goes considerably further than the matter of transgender access to restrooms in Charlotte, however: It also prohibits any local government from enacting its own non-discrimination ordinance, mandates that state public school students use the bathroom that matches the gender listed on their birth certificate, and — with echoes of Birmingham — prevents cities from setting their minimum wage higher than the state’s (which, like Alabama’s, is the federal minimum of $7.25).
While the Charlotte ordinance had gone through a contentious process involving hours of public comment by citizens (as well as a failed attempt at passing the same law a year earlier), the state law underwent no such scrutiny. In fact, opponents of the law said that the whole point of passing it in a special session was to avoid such a process, an allegation Gov. McCrory has denied.
North Carolina is now at the beginning of a legal battle with the United States Justice Department over the whole imbroglio. The Justice Department has brought a discrimination suit against North Carolina; the state promptly countersued, alleging overreach on the part of the Federal Government. U.S. Attorney General Loretta Lynch (a North Carolina native), speaking at a press conference in Washington on May 9, said, “This is not the first time that we have seen discriminatory responses to historic moments of progress,” adding to transgender people: “We see you. We stand with you, and we will do everything we can to protect you going forward.”
There are many obvious parallels between the situations in Birmingham and Charlotte, but one more that is notable is that in these situations where local laws are preempted by state legislatures, the votes tend to fall along lines both partisan and geographical. Things tend to break down as rural Republicans voting against urban Democrats. (This is true elsewhere as well, not just in these two cases.) Charlotte has seen some concerts and other events cancelled due to performers and businesses being uncomfortable with the tenor of the prevailing legal conditions, but as has been remarked, the people voting against these city ordinances tend to represent rural constituencies who will be unaffected by any loss of business in the big city.
These two are far from the only cases of this kind of preemption, however, and they didn’t begin happening yesterday. One instance that could be said to be the blueprint for these situations took place in Wisconsin, beginning in 2008. The city of Milwaukee, in a citizen-initiated referendum in November 2008, voted by a wide margin to require businesses in the city to provide their workers paid sick leave.
The law never took effect, however; it was tied up in courts for several years until, in March of 2011, the Wisconsin state legislature and Governor Scott Walker swooped in for the kill. A bill that would nullify the city’s law had been passed through the state Assembly, and the Senate approved the bill by a 19-0 margin (all of the Republicans, plus one independent and two Democrats), on a day when 14 Democrats were out of state trying to stop a bill to end most collective bargaining for state employees.
The law would have required large businesses to provide nine days per year of paid leave, while small businesses would have had to provide five days.
Just like the previously mentioned case in North Carolina, the Wisconsin bill didn’t stop at nullifying Milwaukee’s law: It also prevents any other local government from enacting paid sick leave legislation. And that still is not the whole story.
Some of the state legislators responsible for the preemption of the Milwaukee law took their act on the road to a meeting of the American Legislative Exchange Council — more commonly known as ALEC — an organization with which Governor Walker has a well-documented and warm relationship. (For instance, Walker delivered the keynote speech at the organization’s annual meeting in San Diego in July 2015, back when he was still a candidate for the Republican presidential nomination.)
ALEC meetings are famously secretive, taking place behind closed doors with an élite membership of state and national legislators and the heads of influential lobbying groups and corporations. ALEC’s most well-known function is the drafting of “model legislation” meant to serve as a template for bills that are then passed in statehouses across the country, bills which tend to serve the interests of the people who attend their meetings (namely employers, broadly speaking).
In an interview on the National Public Radio program Fresh Air, Lisa Graves, the Executive Director of the Center for Media and Democracy — a national watchdog group identified primarily with liberal or progressive causes — said that the aforementioned Wisconsin legislators, attended a private ALEC “task force,” where they met with politicians and corporate leaders and held up their measure as a piece of national model legislation for states that might want to take similar measures. According to Graves, representatives of the National Restaurant Association handed out maps of other cities that were considering (or had already adopted) paid sick leave measures, telling legislators that they should move to preempt them whenever and wherever possible.
In March of 2016, Bloomberg News reported that the City Council in Tempe, Arizona, was considering instituting a paid sick leave measure when the state legislature took action. In a true preemption, Arizona went after the issue before the fact; state officials threatened to withhold funding for key services such as firefighting and police for municipalities that enact paid sick leave laws. Arizona State Senate President Andy Biggs said that cities think they have more autonomy than they do, and that the state must sometimes keep them in line. Speaking of the possible withholding of funds and other measures, he said, “You can’t put a municipality in jail, nor would we. What we’re really seeking to do is provide a deterrent effect.”
One irony is that many business leaders actually support such measures as increased minimum wages and paid sick leave. An article in the Washington Post by Lydia DePillis details a survey conducted in a “webinar” by Republican pollster Frank Luntz that showed 80% of a group of 1,000 executives and Chambers of Commerce officials supported minimum wage increases, and offering paid sick leave is standard practice in many businesses, especially large ones.
Wisconsin and North Carolina have both been battlefield states in the simmering conflict between states’ more conservative rural residents and their more liberal urban population centers. Walker survived an intensely combative recall election in 2012 that was brought on by his aggressive anti-union efforts in a state considered to be the home of 20th century progressive labor protections, and his strongest support tends to come from outside major cities like Milwaukee and Madison.
In North Carolina, Governor McCrory will be up for reelection next year, and it remains to be seen what impact the fight will have. Speaking to Chuck Todd on Meet the Press, he maintained that the state’s actions were meant to fight what he calls “government overreach” on the part of city governments. He insisted that companies can have their own policies if they wish to protect transgender people and other gender and sexual minorities.
In any case, this quarrel between the states and their cities continues in many places. Republicans insist that a “patchwork of regulations” across their states would be bad for business, while Democrats hit back with the charge that the self-styled party of small government is showing interest in exerting its power in these cases.