When Should States Pre-empt Local Governments?
The Century II Performing Arts & Convention Center here in Wichita, Kansas, is many things. It is a home for regular and much-attended concert, ballet, theater, and opera performances, not to mention many local meetings, expos, and events of varying sizes (except during this past pandemic year, of course, when all large gatherings have been cancelled). It is also, depending on whom you ask, the grandest, most recognizable, most valuable historical building in all of Wichita. Or perhaps it is our largest, ugliest, costliest white elephant—an out-of-date building with heating and sound and size issues which make it incompatible with contemporary performance standards. Basically, just an albatross the city would be better off without. The arguments over the fate of Century II have been going on here for years, and despite a year-long COVID-induced delay, the arguments show no sign of growing any less intense.
Such fights are probably familiar to many Strong Towns readers. Whether the building in question is large or small, located in the middle of one’s downtown or on the outskirts, regularly-used or merely of sentimental value, many of the debates over them follow a similar pattern, with similar components: renovation vs. destruction, fund-raising vs. taxes, sunk costs vs. future revenue, etc. I don’t think Wichita’s argument over Century II can add anything new to what Chuck Marohn already wrote when discussing the fate of Brainerd’s beloved, useless old water tower. That is, when a city’s finances are fragile (and Wichita’s definitely are), when basic maintenance has long been deferred (and Century II’s definitely has been), and when the opinions of city residents about the building in question are deeply divided and reflect genuine separation from one another (again, very much the case here), finding common solutions can be devilishly hard. But here in Wichita there is an additional wrinkle to this problem worth thinking about: are these the sort of arguments that states should be drawn into?
The “Antithesis” of Home Rule?
Recently, activists who have organized on behalf of saving Century II from possible demolition as part of a grand downtown redevelopment plan appealed to Kansas’s state government, pushing a bill that would have required Wichita—and other Kansas cities—to hold a public referendum before approving any construction that could affect certain historic buildings. (This is in addition to other state and federal laws regarding historic landmarks.) Two members of Wichita’s city council, along with others, traveled to the state capital of Topeka to testify against the bill, which ended up being tabled, though its supporters continue to fight for it. Their argument was that passing the bill would be an act of state preemption. Amanda Stanley, a lawyer working for the Kansas League of Municipalities, called the idea of the state requiring that the local populace be allowed to vote one way or another on the fate of historic buildings "the antithesis of home rule."
"Home rule" refers to the idea that municipal governments ought to be able to fully govern their own residents. It’s a principle often officially cited by states, but in practice is usually ignored—something the people of Wichita are well acquainted with. In 2014 the city fought in vain a state law overturning local gun control ordinances, thus passing along to our city increased insurance costs (since we could no longer legally limit concealed carry in public buildings like courthouses and libraries, in accordance with local preferences). Then in 2015, the state of Kansas successfully sued Wichita to stop from us from following through on a minor local marijuana decriminalization referendum, obliging the city to continue to accept the costs of enforcing invasive drug laws (ones that, given the results of the referendum, had limited popular support). So state preemption is nothing new here.
How does this add to our understanding of the problem which fights over buildings like Century II pose to cities? Because in this case both groups—those in favor of the state forcing the city to commit to a binding referendum on any decision regarding Century II, and those opposed—could claim to be defending the right of the city to govern itself.
To grasp this, set aside the general principle of local, democratic governance, and think in terms of the institutions which such governance gives rise to. In the case of Wichita, what it has given rise to is a council-manager form of government, with a city manager and a professional staff in control of the details of the city's budget and general policies, and a city council, nominally led by the mayor, which gives approval to and (in certain circumstances) initiates, stops, or gives correction to those policy directions. For those who spoke on behalf of the city in Topeka, "home rule" means "rule by the government of the city of Wichita." Given all of the above examples, it seems entirely reasonable that local city leaders, whose hands are already tied in so many ways, would strongly resist yet another state mandate.
But this would be a state mandate connected to local democratic action, would it not? Local voters deciding on whether a proposal involving the destruction of a beloved-by-some old building should go forward or not…that's not the same as our earlier examples of preemption, is it? That's part of the problem here: knowing exactly where real local democracy lies.
Local Democracy and the “Growth Machine”
In some ways, those who spoke for the city tipped their hand in an anti-democratic direction. When they testified in Topeka that the voters of Wichita (or wherever) lack sufficient training or experience “to make rational choices regarding the maintenance of such buildings,” the condescension was thick enough to cut with a knife. But are they wrong? Not necessarily. Part of the whole reason we have a representative system of government is because it has become accepted that, when societies become large and complex enough, mass democratic politics—government by referendum, in other words—becomes a risky project, particularly when complicated and long-term problems demand resolution. Those who take on the difficult, often thankless task of trying to organize, serve, and lead their city through those governing institutions can't be blamed for seeing public end-runs to the state government like this as just an additional complication of their jobs.
Maybe the problem, then, is those jobs themselves? Too often the institutions of city governments in American actually don’t have the kind of power and responsibility which would enable them to balance distinct needs and force compromises when dealing with a divided population like Wichita’s. On the contrary, potentially divisive issues are frequently laid out by city staff to those in government in ways which foreclose any truly fundamental political arguments. In the case of my city, like so many others, it often seems that the only voices which regularly emerge to influence the direction of city policy are those already friendly to construction, development, and the expansion of the city's built environment. In other words, the "growth machine." And after watching Wichita’s city council frequently acquiesce to such growth-friendly calculations, perhaps it makes sense for concerned citizens to want to make an end-run around these local institutions, and appeal directly to the state in the name of their (potentially) localist projects.
Basically, I am in philosophical agreement with Chuck regarding subsidiarity, as he laid out in a recent Upzoned episode on state preemption. Determining the most appropriate level for making decisions, and giving it the power and authority to make decisions accordingly, is far better for the kind of trust-building democratic legitimacy cities like mine need if they are to address their many problems. Hence, rather than appealing to the state, even in the name of something which would arguably empower local democratic concerns over a landmark building like Century II, one should organize politically on the city level instead.
But that just brings us back to my home city of Wichita. We are a city that—almost uniquely among all American cities of its size and situation—maintains a manager-council form of government, with a nominally non-partisan and part-time city council that is both too small and too understaffed to effectively and democratically articulate, represent, fight, and compromise over the divided desires of its citizens. Rather than appealing to the already much-abused preemptive proclivities of our state government, should the efforts of “Save Century II” be focused on organizing around and working with or seeking influence over the institutions of Wichita's city government? Yes, I think they should. But given the deep structural limitations of our city government as currently constituted, do I blame these folks for seeing our city government as a possibly unreliable instrument, perhaps incapable of holding to whatever a majority of voters may charge them to do, and instead seeking a state-level run-around? I have to admit: no, I don't.
Can any conclusion be drawn? Perhaps just this: state preemption appeals not solely because of abiding concerns over local city corruption or dysfunction, but also because of local governing structures, and their institutional ability—or lack thereof—to resist the growth machine. If we want cities to be able to govern themselves and forge the compromises which city politics makes necessary, then the city has to take upon itself the political structures that would enable it—and the citizen activists who want to push it in one way or another—to do so.
Russell Arben Fox grew up milking cows and bailing hay in Spokane Valley, Washington, but now lives in Wichita, Kansas, where he runs the History & Politics and the Honors programs at Friends University, a small Christian liberal arts college. He aspires to write a book about the theory and practice of democracy, community, and environmental sustainability in small to mid-sized cities, like the one he has made his and his family's home. He also blogs—irregularly and usually at too-great a length—on politics, philosophy, religion, socialism, bicycling, books, farming, pop music, and whatever else strikes his fancy, at In Medias Res.
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