Tag Archives: home rule

Local Control? Surely You Jest…

The anticipated conclusion of the 2026 session of Indiana’s legislature is February 27th, due to an unusually early start; the statutory deadline is March 14th.

Let’s hope they meet the target date of February 27 th. The end can’t come soon enough…

Every year, the intrusions of Indiana’s legislative overlords into local decision-making makes me wonder why Hoosiers even bother electing Mayors and city councilors. This session is no different. At this point in the session, some of the more egregious measures have–thankfully–been deep-sixed (I’m thinking especially of an outrageous bill that would have overruled local zoning affecting billboards–undoubtedly a bill near and dear to the hearts of lobbyists for the billboard industry). But plenty of the intrusions remain viable, and look likely to pass.

Mirror Indy has reported on a bill that aims to forbid county councils from using state road funding for projects picked by individual councilors. While the measure would apply statewide, the proposal probably targets Marion County, where reports emerged last year asserting that a few city-county councilors had used their share of a $25 million pot of money to fix roads in front of their homes or near their workplaces.

Assuming those reports were accurate, the appropriate response in a small-d democratic system would come from the voters. Inappropriate decisions about where to spend public monies are a time-tested political issue, and in a properly functioning system, would become campaign issues the next time those accused of self-dealing were up for re-election. In other words, local voters would decide whether the accusations were accurate and if so, whether the behavior of these particular councilors–when considered alongside other performance by those councilors–required their replacement.

Instead, the legislature has moved to restrict all counselors statewide from having a say in the way these funds would be spent.

This example is hardly a one-off. Just this session, Indiana’s legislature has moved to preempt local rental regulations. HB 1210
would block local governments from adopting or enforcing rules that limit homeowners’ ability to rent out their property,
overriding existing local ordinances in cities like Carmel and Fishers that limit short-term or unit rental caps.
Cities and towns would no longer have the ability to tailor rental housing rules to the specific needs of their communities or to respond to the particularities of their local housing markets.

HB 1001 is even more egregious. It would impose statewide standards on local zoning and permitting–usurping the historic prerogatives of local officials to respond to neighborhood desires and other specific situations in their communities  The measure is presumably prompted by a not-unreasonable desire to increase housing supply, although how that goal would be furthered by the imposition of statewide criteria for lot sizes, parking and density, or by the removal of local control over design requirements, is–to be charitable–difficult to understand.

Even worse, SB 176 would prevent local governments from using zoning/land-use powers to restrict or ban shooting ranges. (I wasn’t aware that Second Amendment rights extended to zoning…)

There’s more, but the overall picture reinforces the obvious belief of the GOP super-majority that Indiana legislators are elected to supervise all lawmaking within the Hoosier State, not simply matters that are usually and properly considered state issues.  The 2026 session continues a longtime trend in Indiana, where state lawmakers believe they know more than local officials and feel free to preempt lawmakers who’ve been elected to exert local control. In previous sessions, the legislature has overruled local lawmakers on issues ranging from puppy mills to the use of plastic bags.

There are numerous problems with this legislative arrogance. Local government officials are closer to the people they represent, and more accessible. In areas that still have local media covering local governments (another problem, granted), it’s easier for voters to monitor their performance. Political theorists since Alexis de Tocqueville have pointed out that robust local governance strengthens democratic habits and builds civic competence. It also allows for what political scientists call “better policy fit and contextual sensitivity.”

There can certainly be differences of opinion about when standardization is desirable, but that sort of thoughtful discussion has generally been absent from the rulemaking in Indiana’s General Assembly, where far too many legislators are unfamiliar both with accountability and with the virtues of an appropriate humility.

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The Legislature That Won’t Stay In Its Lane

Indiana’s legislature is preparing for its 2026 session. Despite the Indiana Senate’s recent, surprising show of integrity in refusing to bow to Trump’s gerrymandering order, my expectations remain low. 

For the past several years, Rightwing Republicans (a large number of whom are White Christian nationalists) have enjoyed a super-majority in Indiana’s General Assembly. They haven’t simply ignored the Bill of Rights and the First Amendment’s Separation of Church and State, they”ve also demonstrated their total disdain for federalism–the constitutional division of authority that accords different powers to those managing local, state and federal jurisdictions.

Indiana’s legislators seem unable to grasp the fact that they are state legislators, not mayors and/or city counselors.

The Indianapolis Star recently shared research by the Indiana Coalition for Human Services, research that focused only on policies regarding the “social determinants of health.” The report included analysis of things like economic stability, health care and public safety, and the researchers found that roughly three dozen so-called “preemption” laws have been passed since 2010. Virtually all of those measures are examples of our radically Rightwing legislature stepping in to overrule policies our legislative overlords consider progressive or–horror of horrors–“woke.”

As Gary Snyder recently wrote on his “Snyde Report,” 

Indiana lawmakers keep insisting they believe in “local control,” right up until a city tries to do literally anything remotely progressive. A new report finds the Statehouse has quietly stacked more than 50 laws designed to block cities like Indianapolis from raising wages, protecting renters, regulating guns, or extending basic protections to LGBTQ Hoosiers — all in the name of making sure nobody accidentally improves quality of life without legislative permission. Since 2010, roughly three dozen of these preemption laws have been passed, part of a national trend where Republican supermajorities treat local governments less like partners and more like misbehaving children who need their policy toys confiscated.

The official excuse is “business-friendly uniformity,” but the results look a lot like wage stagnation, housing shortages, and two in five Indiana households unable to afford the basics where they live. Cities can’t raise the minimum wage, require affordable housing, or even ban puppy mills without the Statehouse swooping in to say no — yet lawmakers remain baffled by Indiana’s poor rankings on gun deaths, pollution, voter turnout, and overall quality of life. With a fresh wave of bills queued up to crack down on immigration, ban ranked-choice voting, police homelessness, and even let legislators impeach locally elected prosecutors, the message is clear: Hoosiers can have local government — just not local solutions.

My only quibble with that summary would be with its last sentence. Thanks to a legislature that refuses to stay in its own lane, Hoosiers don’t even have genuine local government–we just elect local “functionaries” who must obey the dictates of their legislative masters. As the Coalition for Human Services found, Indiana’s state lawmakers have repeatedly used the doctrine of preemption to target policies that could help lower-income Hoosiers and others in vulnerable groups, but sometimes, the reasons for preempting local government decisions don’t seem ideological–why, for example, did the legislature overrule at least 20 local ordinances meant to combat puppy mills? Is saving puppies “woke”? (My best guess: lobbyists and contributions from the owners of those establishments.)

In 2016, I was infuriated when Indiana’s legislators banned local governments from restricting the use of plastic bags at stores. The law prohibited local governments from banning (or taxing or placing fees on) plastic bags and similar single-use “auxiliary containers.” In a measure that clearly demonstrated that “home rule” is a fiction in Indiana, the law amended Indiana’s toothless home-rule statute to expressly bar local units of government from adopting “any prohibition, restriction, fee, or tax on items like plastic bags, paper bags, cups, boxes, or other one-time use packaging at stores.”

In Indiana, local governments retain that mythical “home rule” only so long as our legislative overlords approve of their “home rules.” Since our legislature is filled with MAGA Republicans who refuse to believe that climate change is a real thing, efforts by local folks to ameliorate environmental threats–even through such modest steps as banning the use of plastic bags–simply cannot be tolerated. 

When you live in a Red state, you soon learn that your legislature considers federalism–along with the protections of the Bill of Rights– optional.

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When We Talk About “Systems” And “Structures”

Speaking of communication, as I did yesterday–Sometimes, it’s a good idea to define your terms.

I’m as guilty as anyone–I sometimes use terms without stopping to specify what I mean. In the interests of clarity, today I’m defining three structural labels that I use frequently–terms that identify aspects of America’s political environment that it’s past time to revisit and revise.

Federalism

Federalism is the name given to America’s division of authority among local, state and federal levels of government. That division recognizes realities of governance: state and federal governments have no interest in handing out zoning permits or policing domestic violence disputes, to cite just two examples. Increasingly, however, many original assignments of responsibility are no longer workable. State-level management of elections, for example, was necessary in the age of snail-mail registration and index cards identifying voters; in the computer age, it’s an invitation to chaos and misconduct.
Federalism also facilitates assertions of state sovereignty where there really is none. Federal highway dollars are conditioned on state compliance with federally mandated speed limits, and similar “strings” are attached to almost all of the federal funding that cities and states rely upon. There are also an increasing number of issues, including climate change and pandemics, that must be addressed globally.

Businesses need uniformity in state laws in order to operate efficiently across state lines. Problems with acid rain can’t be solved by municipal ordinance. The internet cannot be controlled by a state legislature–or even by Congress. Even in law enforcement, generally considered the most local of issues, multistate criminal enterprises justify an increased federal presence.
 
The world has changed since the Constitution was drafted. Today, where should authority for governmental responsibilities reside? What should federalism mean in the age of technological connectivity and globalism?

Home Rule

Despite the existence of an Indiana statute labeled “Home Rule,” efforts at self-government by Indiana municipalities are routinely pre-empted by the Indiana Legislature. Just in the past few years, lawmakers have prevented local governments from restricting the use of disposable plastic bags and dictated what modes of public transit cities are permitted to use and tax themselves for. In a particularly ironic ruling, a Judge found that the state’s Home Rule statute itself blocked Ft. Wayne’s enforcement of a “good government” ordinance intended to restrict “pay for play” politics. The ordinance would have limited the amount of money owners of a company could give elected officials and still bid on city contracts.

In Indiana, the absence of genuine home rule means that decisions affecting residents of urban areas are routinely made by representatives of suburban and especially rural populations (see gerrymandering), whose grasp of the challenges and realities faced by elected officials in metropolitan areas is limited, at best.

Indiana is not unique. The Brookings Institution has described the extent to which state laws preempt local control over public health, economic, environmental, and social justice policy solutions. In 2019, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.
 
There are clearly issues that should be decided at the state or federal level. (See Federalism) Policy debates should center on what those issues are, and state-level lawmakers should to allow local governments to make the decisions that are properly local. Right now, they can’t.
  

Gerrymandering

Every ten years, the Constitution requires that a census be taken and the results used to remedy population discrepancies in the succeeding year’s congressional redistricting.

In our federalist system, redistricting is the responsibility of state legislatures. Gerrymandering, or partisan redistricting, occurs when the party that controls a statehouse manipulates district lines to be as favorable as possible to its own electoral prospects. “Packing” creates districts with supermajorities of the opposing party; “cracking” distributes members of the opposing party among several districts to ensure that it doesn’t have a majority in any of them; and “tacking” expands the boundaries of a district to include a desirable group from a neighboring district.

Partisan redistricting takes its name from then-governor of Massachusetts Elbridge Gerry.

Studies have tied gerrymandering to the advantages of incumbency and to partisan rigidity, but by far its most pernicious effect has been the creation of hundreds of Congressional seats that are safe for one party. The resulting lack of competitiveness reduces the incentive to vote or otherwise participate in the political process, because the winner of the district’s dominant party primary is guaranteed to win the general election. Primary voters tend to be more ideologically rigid, and as a result, candidates in safe districts are significantly more likely to run toward the extremes of their respective parties. Gerrymandering is thus a major contributor to partisan polarization.

Thanks to the way gerrymandered districts have been drawn in Indiana, a majority of policymakers in the Statehouse represent predominantly rural areas. As a consequence, state distribution formulas that allocate funding for roads and education significantly favor rural areas over urban ones, and members of Indiana’s General Assembly are more responsive to rural than urban concerns.

When I use these words, this is what I mean.

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Games Indiana’s GOP Plays…

Oh, Indiana!

Ours is a state so gerrymandered that control of our legislature remains firmly in the hands of a Republican super-majority. To say that the lack of competition has given us state lawmakers who reflect the party’s ideological extremes would be an understatement.

So what is the “World’s Worst Legislature” (h/t to the late Harrison Ullmann) doing this year?

Well, our lawmakers are no longer trying to change the value of Pi, which I suppose is progress of a sort. What they are trying to do is keep Indiana utilities from phasing out their dependence upon coal;  persisting in their efforts to elevate the rights of fertilized eggs over the rights of women; refusing to fund election security measures; and demonstrating their ignorance of the separation of powers.

There has been a bill protecting religious mental health workers who deny emergency assistance to those they consider “sinners” and another prohibiting athletes who were born male from competing against cis women in sports. Another “protective” measure would prevent employers from implanting chips in their workers (a practice not currently occurring in the state, but hey! It might happen, so let’s talk about that rather than the very real problems we face.)

The majority is also moving new legislation to create a “cross-check” bill to facilitate the purging of (certain) voters, after a previous effort to do so was struck down by the courts as blatantly unconstitutional.

And of course our legislators are continuing to divert resources from the state’s public education system in order to prop up the religious institutions that make up some 95% of “voucher” schools.

But absolutely the most consistent legislative behavior, year after year, is the General Assembly’s adamant refusal to allow cities and towns to do–well, pretty much anything— unless and until their overlords in the legislature deign to give local elected officials their official blessing. (Especially Indianapolis, which the Republicans who represent mostly rural districts irrationally resent.) It took three sessions for Indianapolis to get permission to hold a referendum on whether to tax ourselves to improve public transit, and then only on condition that we not include light rail. Why no light rail? Who knows? And this session, legislators continue to offer roadblocks to planned expansion of the city’s rapid transit lines.

The most recent–and arguably this session’s most egregious–example is the legislature’s move to foreclose Indianapolis’ effort to protect tenants from landlord abuses. Even the Indianapolis Star was offended.

Mayor Joe Hogsett’s proposal to provide more protections to Indianapolis renters now faces an uncertain future.

Indiana lawmakers added language to a bill Monday that would prevent any city from regulating landlord-tenant relations without approval by the General Assembly, including at least two key items in Hogsett’s proposal: requiring landlords to notify renters of their rights and responsibilities, and fining landlords who retaliate against renters for reporting problematic housing.

Senate Bill 340 initially moved through the Indiana Senate as a bill addressing laws about condemned properties. An amendment added at the Republican-controlled House Judiciary Committee, though, would undercut a legislative priority of Hogsett, a Democrat, now in his second term as Indianapolis mayor.

The Hogsett administration saw its proposal as a way to balance the scales against unscrupulous landlords, many out of state, who take advantage of lax government oversight in Indiana to prey on desperate renters.

Any lawyer who has practiced real estate law in Indiana– I am one–is aware that Indiana law is heavily weighted in favor of landlords. (I’m sure this favoritism has nothing to do with the fact that the tenants who are disadvantaged by our legal framework are far less likely to be political contributors than their landlords.)

When this year’s (mercifully short) session comes to an end, we’ll see what passed and what didn’t. But one thing we can predict with confidence: local jurisdictions still won’t have anything that looks remotely like home rule.

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The Hidden Hand

When I hear the term “hidden hand,”  I immediately think of Adam Smith. But a couple of weeks ago, I came across a very different definition of that term–one that resonated with me.

Published by a think-tank called “Support Democracy,”the article addressed the growing problem of pre-emption, which it dubbed “the hidden hand.” In Indiana, we’ve had that problem as long as I can remember; it’s what I fulminate about when I decry local government’s lack of home rule.

Many of America’s cities, towns, and counties have less power than they did at the start of the year to protect the health and safety of their communities or to respond to the unique needs and values of their residents. That’s because between January and June 2019, state legislatures across the nation continued a troubling trend of passing more laws forbidding or “preempting” local control over a large and growing set of public health, economic, environmental, and social justice policy solutions. This legislative session, state lawmakers made it illegal for locally-elected officials to enact a plastic bag ban in Tennessee, raise revenues in Oregon, regulate e-cigarettes in Arkansas, establish minimum wages in North Dakota, protect county residents from water and air pollution produced by animal feedlots in Missouri, or protect immigrants from unjust incarceration in Florida.

Some states this session went further, with bills aimed at abolishing core powers long held by cities, including their ability to negotiate and set employment terms with their own contractors, enact and implement local land use laws, and control their own budgets and finances.

Here in Indiana, local jurisdictions have long been under the thumb of state lawmakers. The same legislators who bitch and moan about “unfunded mandates” imposed on state governments by Washington blithely operate on the assumption that they know better than the folks running city and county jurisdictions how those officials should do their jobs.

Are there issues that require federal mandates? Sure. Are there issues that ought to be handled consistently statewide? Of course. But the policy debate should center on what those issues are–and it rarely if ever does. Instead, we have the Indiana General Assembly deciding what vehicles Indianapolis can include in our locally-funded mass transit plans (no light rail for us–why, no one can explain).

It’s bad enough that a former Governor whose political savvy outstripped his devotion to rational policymaking (yes, Mitch, I’m looking at you) shoehorned a tax cap into the state constitution. That certainly made him popular. It has also destroyed the ability of local governments to provide appropriate levels of basic services. (Not to mention that provisions of this sort don’t belong in constitutions, which are by definition frameworks prescribing how issues like taxation are to be dealt with.)

State and local governments desperately need to revisit the allocation of power between them. In states like Indiana, state-level lawmakers need to allow local governments to make the decisions that are properly local.

As the report at the link explains,

Preemption is a tool, like the filibuster, that can and has been used by both political parties. In the past, preemption was used to ensure uniform state regulation or protect against conflicts between local governments. Preemption has also been used to advance well-being and equity. State civil rights laws, for example, allow cities to increase protections, but prohibit them from falling below what was required under law. Traditional preemption emphasized balance between the state and local levels of government. While state policy still had primacy, according to Columbia Law School professor Richard Briffault, it was understood that “state policies could coexist with local additions or variations.”This is not what we are seeing now.

“New Preemption” laws, according to Briffault, “clearly, intentionally, extensively, and at times punitively, bar local efforts to address a host of local problems.” Some of this is propelled by a disdain for local lawmaking and urban lawmakers seen as too liberal, intent on “oppressing” the free market and “trampling” on individual liberty…. Another primary driver of new preemption is the opportunity conservatives now have to deliver on a long-promised anti-regulatory agenda – an agenda that disproportionately and negatively affects women, people of color and low income communities. These new preemption laws are being used to prohibit local regulations without adopting new state standards in their place, effectively preventing any regulation or policy remedy at all.The efforts to consolidate power at the state level and end local authority over a wide range of issues are part of a national long-term strategy often driven by trade associations and corporate interests. Much of this effort has been orchestrated by the American Legislative Exchange Council (ALEC), an industry-funded organization made up by lobbyists and a quarter of all state lawmakers that writes and distributes model bills.

In my most recent book (which I shamefully keep hyping) I make a case for revisiting federalism, and ensuring that control of issues is lodged with the appropriate level of government.

I doubt I’ll live long enough to see that happen…..

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