From Fracking Bans To Paid Sick Leave: How States Are Overruling Local Laws PR Watch's Lisa Graves says that states can overrule local laws, and that legislatures are increasingly using preemption to stop things like minimum wage increases and protections for LGBT people.
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From Fracking Bans To Paid Sick Leave: How States Are Overruling Local Laws

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From Fracking Bans To Paid Sick Leave: How States Are Overruling Local Laws

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From Fracking Bans To Paid Sick Leave: How States Are Overruling Local Laws

From Fracking Bans To Paid Sick Leave: How States Are Overruling Local Laws

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PR Watch's Lisa Graves says that states can overrule local laws, and that legislatures are increasingly using preemption to stop things like minimum wage increases and protections for LGBT people.

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The North Carolina state legislature sparked a national controversy recently when it acted to overturn a law passed by the City Council in Charlotte, N.C. that banned discrimination against LGBTQ people. Our guest, Lisa Graves, says this move by the North Carolina Legislature is part of an increasingly common pattern in which towns and cities pass laws ranging from bans on fracking to increasing the minimum wage only to have their state legislature pass a law that overrules the local ordinance.

Lisa Graves is executive director of the Center for Media and Democracy. The center has been tracking this new trend of preemption laws on their online news journal, PR Watch. The center describes itself as a watchdog organization that conducts in-depth investigations into corruption and the undue influence of corporations on media and democracy.

Lisa Graves previously worked as deputy assistant attorney general in the Justice Department and as chief counsel for nominations for the Senate Judiciary Committee. She spoke with Fresh Air contributor Dave Davies.

DAVE DAVIES, BYLINE: Well, Lisa Graves, welcome to FRESH AIR. Let's begin with North Carolina, where there was a huge controversy about a local ordinance there that was the subject of state action - began in Charlotte. What happened?

LISA GRAVES: In February, in Charlotte the City Council passed a measure to provide protections for members of the LGBTQ community. And the minute the City Council passed that measure, the governor and the Legislature basically said that were going to block it, or in other words, preempt it. A month later, on March 22, the state Legislature entered into a special session.

There was no hurricane or emergency, but they acted with a tremendous speed to call a special session in order to preempt that measure. And the lawmakers who were going to be considering that preemption bill received only about five minutes to look at the bill before they had to vote on it in committee. And the public was given only 30 minutes to speak out about that measure before that measure was put to a vote. And within nine hours, that bill was passed and signed into law.

DAVIES: So the Legislature enacted a law, in effect, overturning what Charlotte had done. What were the provisions of the state legislation?

GRAVES: The state law basically took away the power of local communities to provide rules to help kids and adults who have a different gender than the one on their birth certificate to be able to use restrooms that are most comfortable for them based on their own gender identity. And the bill not only preempted those measures, but it also had provisions in there that took away workplace discrimination practices that had been in place for decades.

What it specifically said was this article, in essence, this part of state law, does not create and shall not be construed to create or support a statutory or common-law private right of action. And no person may bring any civil action based upon the public policy in that law. And what that means is it takes away the rules for people who are fired or believe they've been fired because of their age, their race, their national origin, their religion or their gender.

That's one of the parts that was included in this bill that was rushed through the legislature. And also in that bill was an effort - was a provision to preempt cities from passing any increase in the minimum wage. So it was about much more than the transgender bathroom issue.

DAVIES: So it actually went farther than the Charlotte - it went beyond repealing the provisions of the Charlotte ordinance?

GRAVES: It went much, much farther and much faster. And the people of North Carolina are only just now really understanding the true impact of that measure.

DAVIES: There's been a lot of attention about who can use what restrooms. Was that a specific provision of the state law?

GRAVES: In essence, that was the target of it. But the law was much broader than that. And so while it clearly was targeting those restroom bills or those measures relating to public restrooms, it was much farther than that in terms of discrimination rules within the state of North Carolina, in terms of what cities could do to protect people from discrimination and to ensure equal treatment.

DAVIES: This became a national story pretty quickly. What have been the consequences for North Carolina and its economy?

GRAVES: There's been a substantial negative reaction to the decision in North Carolina, to the decision of legislature and the governor, to make that bill law. There have been threats about pulling out from major sporting events. And next door in Georgia, which was considering a similar bill, those threats from, you know, major sports have forced that governor to back away from a similar measure in that state.

DAVIES: You said that this measure not only repealed some of the protections that the Charlotte law established, but it went farther and had other provisions relating to minimum wages and lawsuits. How common is it for state legislatures to overrule local ordinances these days?

GRAVES: This is a new trend. And it's a growing trend, where we see state legislatures intervening in local actions on a variety of issues, including local measures to increase minimum wage, to provide for paid sick leave for workers, to address fracking - which involves the hydraulic pressure drilling for natural gas in people's backyards almost literally. You also see measures, for instance in Tennessee, where a city wanted to try to ensure that there were rewards for contractors who employed low-income workers or a small percentage - 10 percent - of low-income workers. That was preempted.

You have a situation in a number of communities, including Wisconsin, just this past week where cities are barred from regulating the use of plastic bags. We're seeing it in a variety of measures, including the LGBTQ community that was affected most specifically in North Carolina. And so it's increasingly the tool of choice for some governors and some legislatures, particularly Republicans - in fact, almost entirely Republicans, even though in South Dakota there was a governor there - a conservative governor - who rejected a similar bar on local communities taking action on restrooms.

And he did so noting that local government is really important to people and that local government is the closest to the people. And he did not want to intrude on the decisions of those local governments.

DAVIES: Most people think that when their local counsel or community leaders enact some legislation, it will govern their lives. How can states simply dismiss it?

GRAVES: I think this is an example of where there's the law, and then there's tradition and practice. And so as a technical matter, as a legal matter, states are the sovereigns in this country vis-a-vis the federal government. And the state as a sovereign government, in essence, technically allows cities to exist or allows these local subdivisions of government to exist. You know, that's sort of the - as these cities have grown and thrived and we have so many more cities in the country, it's sort of the norm that we obviously have city governance.

And so you have this technical reality, which is that for many cities, their power derives from the state. And the states can take it away unless there are specific rules within the Constitution or the statutes that protect those cities. But the reality is that we have relied on cities to provide a whole network of laws and rules and to enact an array of democratically-enacted measures that govern all sorts of aspects of our daily lives. And that's the norm. And this effort to try to take away city power is not the norm - certainly not the modern norm.

DAVIES: So it may be legally sound but not the way we're used to governing ourselves?

GRAVES: That's correct, although there may be some differences depending on whether a city has home rule under statutory provision or under the Constitution. But in general, it's just not the way things have been done in this country for many, many years, to have the states be taking away the authority of local communities. In fact, what you've had is the opposite. You've had a trend in which the rhetoric on the right and the left has been really pro-city, has really been focused on empowering cities and talking about cities as being crucial players in our democracy and in fact the most responsive part of our democracy in our federal, state and local systems.

DAVIES: Our local leaders know best.

GRAVES: That's what we hear all the time, except for recently.

DAVIES: Let's go into some of the areas that local ordinances have taken up and then faced action from state legislatures. Sick leave is one. Give us an example of a city that's attempted to provide paid sick leave for workers.

GRAVES: A couple years back in Milwaukee, there was a lot of activity around sick leave measures. There was actually a referendum in which 70 percent or more of the people voted to ensure that employers within the city of Milwaukee were providing workers with paid sick. And after that measure passed, the state Legislature that came in with Governor Walker - Scott Walker here in Wisconsin - passed a preemption measure to thwart that bill, basically to make it impossible to enforce and prevent the local community in Milwaukee or other cities around the state from adopting similar measures.

And so in Wisconsin, you had a direct case of preemption, a direct case of state intervention in a highly popular local measure in Milwaukee. And then after that measure was thwarted by the state Legislature, the proponents of that measure took it to a meeting of the American Legislative Exchange Council, which is a group that describes itself as the largest voluntary body of state legislators in the country.

And in a closed-door meeting of one of its task forces, where corporations and politicians meet behind closed doors, that preemption measure was held up as a model for the nation. And the National Restaurant Association handed out a map of other cities that were considering or had adopted paid sick leave measures. And the legislators were told that in essence, they should be moving to preempt those measures wherever they are and try to thwart them wherever they could.

DAVIES: Maybe you should just take a moment to explain a little bit more about what the American Legislative Exchange Council is, ALEC. What do they do?

GRAVES: ALEC is an organization that we call a pay-to-play operation. We actually launched ALEC Exposed in 2011 after a whistleblower gave me all the bills that had been secretly voted on by corporate lobbyists with state legislators at ALEC task force meetings. When the whistleblower gave me these bills, there were nearly a thousand of them.

They covered nearly every domestic area of American law. And one of the pieces of paper that was in that set was a document that was a promotional document to recruit corporations to fund ALEC - to fund its trips for lawmakers, to fund its activities. And that recruitment document, called ALEC 101, said that the public sector and private sector get an equal voice and vote. That was the phrase it used, equal voice and vote.

DAVIES: It's a little confusing when you talk about corporations voting on amendments and voting on legislation. You're talking about a private organization, this council, whose members include state lawmakers from around the country and corporations, and that they work together and develop model legislation, which are then sent back to states and introduced. Those are the votes you're talking about, these internal votes over what kind of legislature - what kind of model-recommended legislation ALEC will come up with?

GRAVES: Yes. Yes. And so you do have organizations across the country that promote model bills or suggest legislation. You have lobbyists across the country that promote bills. What you have in ALEC is a situation in which corporations and corporate lobbyists are actually sitting in a room at a fancy resort. They are behind closed doors. The press and public are not allowed in those rooms.

And the corporate lobbyists are actually taking an up or down vote, along with the state legislators, on these bills at ALEC task forces. And then they become models for the nation. And we see them moving, in many instances quite rapidly, once they become an ALEC model.

DAVIES: Lisa Graves is executive director of the Center for Media and Democracy. We'll continue our conversation in just a moment. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

DAVIES: This is FRESH AIR. And if you're just joining us, we're speaking with Lisa Graves. She is executive director of The Center for Media and Democracy. There was sort of an interesting twist on this whole phenomenon in Arizona. Tell us about that.

GRAVES: In Arizona, in the city of Tempe, which is where one of the major universities in Arizona is, there was a study committee in which the city council and others were working with the local businesses to look into how to have a paid sick leave measure in that city.

And the state legislature, which is, you know, dominated by Republicans and ALEC members, the members of American Legislative Exchange Council, have basically come forward and said if a city passes such a measure, the state will basically hold back funds for firefighters, for police. And so it will basically not do the revenue sharing that is traditional in Arizona between the state and the cities for providing funding for emergency services if a city dares to adopt a paid sick measure. And that basically stopped that measure in its tracks.

DAVIES: Wow. So they didn't try and preempt the actual measures themselves. They simply said there will be consequences if they are enacted.

GRAVES: It's a new form of preemption basically - that's right. If a city does adopt such a measure, it would be denied revenue. And certainly a city could go ahead and adopt such a measure and then try to litigate it, but in the meantime, it's a very difficult environment if the state actually goes through with that threat and does not give funding for police and firefighters. It's an extraordinary hammer to impose on, in essence, the idea of offering paid sick, of having a city require paid sick leave within its jurisdiction.

DAVIES: You know, what's interesting about this issue is that you have local communities enacting ordinances to, you know, to regulate something like minimum wages or sick time or the use of plastic bags and then - state legislatures intervening to circumvent those restrictions.

But they all come from the same voting base, right? I mean, the legislatures, some of them are representing these very communities that enact these ordinances. Why is there such a disconnect between the politicians at the local level who are enacting some of these ordinances and those at the state level who are cracking down on them?

GRAVES: Well, I think with respect to the state Senate jurisdictions, often these states have much smaller Senates, meaning fewer members representing larger areas. So it's certainly possible that some of the state senators do represent areas, more urban areas, that are passing these measures. But in general what we're seeing is a bit different, which is that you see legislatures that are covering the entire state geographically and so numerically have a large number of rural representatives, often Republican or conservative representatives.

And then you have some cities and those city representatives who are outnumbered by those rural representatives. And so what you're seeing in some instances, although not all because you certainly have conservatives representing suburbs, for example, but what you're seeing in some ways is a very blue city, red state divide. And in Alabama, you have a situation which had another dimension to it, which is you have a city of Birmingham, a city that is now, after many years and a very long civil rights struggle, now led by African-American leaders in that city.

You have a high number of African-Americans living and residing in Birmingham. But you have a state legislature there in Alabama that is overwhelmingly majority white and a white governor, and the city of Birmingham, in essence, feels it's not being heard. Its concerns about the minimum wage are not being heard in the state legislature. And so they move forward with rules to govern the employers in their city to provide this very modest increase in the minimum wage of an hour to increase it $2.75 an hour to increase it.

And you had a governor and a legislature that, you know, in essence utterly disrespected that decision and that determination by that local community and preempted it. And you had that happen in the context of a governor who had just recently given extraordinary pay increases to some of his key staffers.

DAVIES: So you often have cities that are enacting these ordinances but they're outnumbered by rural and suburban legislators in the state the state capital.

GRAVES: That's correct. That's correct. That's what we're seeing in a lot of places. You have very progressive cities and you can see that play out in both the local elections for mayor, in many instances, as well as in the races for Congress and in the presidential races when you look at the big map of where it's blue and where it's red.

DAVIES: What's the argument? I mean, why does the state have to be uniform in these areas? What's the argument for preventing communities from tailoring legislation to their own needs and interests?

GRAVES: Well, the argument is that businesses don't want to have a patchwork of laws - that's the term you'll often hear. They don't want to have to deal with a patchwork of conflicting regulations. But the fact is is that businesses deal with a patchwork of regulations all the time. Different cities have different zoning rules. Often cities have different tax rates or individual tax rates. Businesses deal with those on a regular basis.

And so that argument I think is unpersuasive. In fact, it's not this patchwork - they don't want those bills anywhere. They don't want to have a higher minimum wage. They don't want that higher minimum wage at the city or the state level. And so the patchwork argument is really, I think, a bit of a red herring, but that's argument that you hear.

GROSS: We're listening to the interview FRESH AIR contributor Dave Davies recorded with Lisa Graves, executive director of The Center for Media and Democracy. We'll hear more after a break. Also rock critic Ken Tucker will review the new album by singer and songwriter Robbie Fulks. And John Powers will review a new dramatic film that he says takes you places and shows you things you haven't seen before. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview FRESH AIR contributor Dave Davies recorded about what's become an increasingly common pattern in which towns and cities pass laws - ranging from laws banning discrimination against LGBTQ people to increasing the minimum wage, mandating paid sick leave and banning fracking - only to have their state legislature pass a law that overrules the local ordinance. This has become known as preemption. Our guest, Lisa Graves, has been tracking the trend for PR Watch, the online news journal of The Center of Media and Democracy. She's the center's director.

DAVIES: You know, here in Philadelphia there were - there was a measure to enact paid sick leave for private employers in the city. It was vetoed twice, I believe, by Mayor Nutter - eventually signed on a third attempt. And this is, you know, a democratic mayor of a city, and he talks a lot about poverty. He's done a lot to fund education. And his argument was - in vetoing the sick leave bill - was yes, it is humane, it's fair, it's rational, it's a good public health initiative.

But the fact is we're a city desperate for jobs and we're - already have disadvantages as compared to surrounding communities. We have high crime, a high tax burden, poor schools. And if you impose a financial burden on businesses that the surrounding communities don't have, it's going to be a disincentive for job growth. I'm just wondering - I'm sure that argument is made on a lot of these things - is there any data that tells us whether they're right?

GRAVES: I think that that - those claims have not been proven statistically. In Philadelphia, you had a situation in which that mayor, you know, ultimately changed his mind - perhaps in view of his legacy. And after vetoing that paid sick measure at the local Chamber of Commerce there, he was ultimately convinced to allow this measure to go into effect and allow people to have paid sick leave. I think you have a situation where these measures are extremely popular and - in fact, in many employers, they're the norm, to have paid sick leave.

But you have a subset of workers who are, in some ways, some of our most disadvantaged workers who do not have this basic benefit that helps them to get well when they're sick or even to take care of a sick child - that these things happen to people. And that's why we were so surprised when we were provided with materials about a poll that was taken earlier at the end of last year and that unveiled earlier this year about how popular paid sick leave is not just by ordinary people - and for ordinary people - but even by CEOs, by chief executive officers and other leaders of businesses. That poll of nearly a thousand - of actually a thousand business leaders across the country showed overwhelming supermajority support for paid sick leave to be the law in this country.

It was in the range of 70 to 80 percent in favor for paid sick, for increased minimum wage, for having this predictive scheduling and for having expanded paternity and family leave. And so what you have is a situation in which these are popular policies, the people want them, and now we have evidence that even - many businesses want them and support them. But you have a pretty narrow - a set of people who are actively arguing against them and using, I think, some deeply flawed studies to try to oppose these really popular and good policies.

DAVIES: I want to explore this. Your organization came up with this survey of business executives by the Luntz Global polling firm. That's Frank Luntz's firm. And it was done for the Council of State Chambers, right? This is essentially a Council of State Chambers of Congress, is that right?

GRAVES: Yes, every state has a state chamber. And it's the council of the executives of those chambers, which means basically the lead lobbyists, the executive director, of each of those state chambers of commerce.

DAVIES: And there's - on your website, I believe, there's access to a webinar in which the pollsters are discussing the results of these - this survey of business executives in which, as I understand it, they find that, in fact, that increasing the minimum wage is favored by a lopsided margin, providing paid sick leave also favored by a lopsided margin, of business executives. And yet, the pollsters are explaining the members of the state - the lobbyists for the state chambers how to still defeat those measures, is that right?

GRAVES: That's correct. So paid sick was supported 73 percent to 16 percent - this is by CEOs from across the country, in each region of the country. Minimum wage increasing - it was supported 80 percent to 8. And what happens in this presentation that's on our site at PR Watch is during this webinar, when these poll findings are unveiled, these state lobbyists for the business community, state chamber lobbyists, are being told how to overcome this empathy.

So, for example, in the fight over increase the minimum wage, even though these state chambers are supposed to represent those businesses - this was a survey of their own members, and their target members - these state chamber executives were told here's how to fight back. Here's how to combat these popular measures to increase the minimum wage. And they were told, for example, in that area to pivot to the earned income tax credit to try to talk about something else rather than the minimum wage. And it was interesting to see.

This was sort of surprising, in fact, because all of us have heard this claim that businesses oppose these measures. Some of these chambers will be able to bring forth a couple of businesses to be examples to speak out against these measures. But it turns out that those businesses are the outliers, that most businesses, when they're asked, most executives when they're asked support these

DAVIES: Well, it doesn't exactly make sense. I mean, it seems to me you have an organization here whose leaders are instructing their lobbyists to oppose measures that their own members favor, right? I mean, why would they do that? Did you ask them?

GRAVES: We did not ask them. The Washington Post, which broke this story, did ask about that question. And basically the state chamber said that they're not active - really active in these fights. Well, I can tell you we watch it in cities and states across the country. And those state chambers are super active in these fights. Forty-nine of the 50 chambers have actively opposed to increase the minimum wage. They've been active in opposing paid sick leave. And that question of why is really interesting. It turns out that the state chambers have a close alliance with the U.S. Chamber of Commerce.

And the U.S. Chamber of Commerce is, you know, an enormous lobbying powerhouse in Congress. And after a change in leadership a couple decades ago, it really changed its approach to focus on the biggest businesses in the country - indeed in the world - such that the majority of the U.S. Chamber of Commerce's millions and millions in revenue comes from just 64 donors. And so I think you have a situation in which there's a lot of distortion as a result of these global corporations and what they want our wages to be or where they think the wages should be in this country versus what most people in most businesses want.

In fact, you know, one of the things that was really surprising to me when I first began looking at the American Legislative Exchange Council, which, you know, is involved in these fights, was that not only did they oppose increasing the minimum wage, they opposed even having a minimum wage. And we've certainly seen some of that rhetoric on a campaign trail in this primary season as well.

DAVIES: Both New York and California have recently enacted increases in the minimum wage. What does that tell us about what's going on?

GRAVES: In those states you have a majority of Democrats and Democratic governors, and so you do have an atmosphere that's less hostile to this clamoring for addressing these wage issues. But I think that that's huge. Those are two enormous states and those states are, you know, moving forward with an increase in the minimum wage, which has not been increased for many, many, many years in California. There's a staging in of that increase over the next six years approximately. And so you're going to see those laws take effect over these coming years in California.

And I think that that will help set an example for other states that they can enact increased minimum wages and it doesn't devastate the economy. It helps those economies be stronger. But I suppose in that sense that you certainly can't make a patchwork argument against California or New York. But I would say that, again, that sort of argument that you have to have uniform rules across every state no matter what city you're in is just belied by experience. One of the reasons why different people live in different cities is in part because of the different cultures of those cities or the different maybe protections of those cities. Maybe they've got better zoning rules. Maybe they have a more thoughtful urban planning process.

There are a lot of differences between cities and towns and communities in our states and in our country. And I think that this idea that the cities have to be uniform is just not really the American way. Now, that said, there are certain rules that have been passed over time that are national rules, like this national minimum wage. That's a floor, not a ceiling. In the area of civil rights, there are national civil rights laws to prevent discrimination, but that's a floor and not a ceiling.

What you're seeing with this trend of preemption is basically trying to make the state - the state's low standard the only standard and to prevent the type of experimentation that has made our democracy thrive where states have been the laboratories of experimentation and so have cities. And so these efforts, I think, are very shortsighted and, in fact, very narrow-minded efforts to prevent that type of experimentation to really help our cities and our states grow and thrive.

DAVIES: Lisa Graves, thanks so much for speaking with us.

GRAVES: Thank you so much for having me on.

GROSS: Lisa Graves is the executive director of The Center for Media and Democracy. She spoke with FRESH AIR contributor Dave Davies, who is also WHYY's senior reporter. After we take a short break, Ken Tucker will review a new album by songwriter and singer Robbie Fulks. Ken says there are some beautiful songs on it. This is FRESH AIR.

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