Lobbyists are brandishing a new weapon at local governments: preemption.
Originally published in The Nation.
WHEN OFFICIALS IN TULSA, OKLAHOMA, were planning the 1996 State Fair, they decided to play it safe and ban concealed weapons. With more than 1 million people drinking beer and getting rowdy over eleven days and nights, they reasoned, allowing guns into the fairgrounds could prove a lethal mistake. “We have fistfights out there sometimes,” warned county commissioner and former police chief Bob Dick. “Would someone reach for a gun if they had one? I don’t have a crystal ball, but my homicide experience shows me people will grab a gun at times in those emotionally charged situations.”
Thanks to the Oklahoma legislature, Tulsa couldn’t follow through. Last spring, at the urging of the National Rifle Association, state lawmakers passed a bill preventing local governments from banning hidden weapons at fairgrounds. “By prohibiting [the] lawful carrying of concealed firearms,” the N.R.A. warned House members, “only the law-abiding permit holder will be left without their firearm for self-defense purposes in areas where they need it the most. Fairgrounds have been the site of serious crimes against individuals, including kidnapping.”
The fair, luckily, went on without incident. But the predicament Tulsa officials faced has significance well beyond the prospect of fairgoers caught in the crossfire of a midway shootout. The Oklahoma gun law represents one of the most dangerous and hidden trends in U.S. statehouses. With the backing of big business and other conservative groups, state lawmakers are passing bills curtailing any regulatory impulse a city or county government might have. The strategy is called “preemption,” meaning that the state governments are preempting, or nullifying, local control. And it’s sweeping the country.
Since their 1994 landslide, Newt Gingrich and his lieutenants have claimed to be decentralizing political power in this country. The G.O.P. revolution, says Ohio Representative John Kasich, “is about shifting money and power and influence and control out of the central government.” In 1995 Gingrich told the National Association of Towns and Townships, “We’re going to get a lot of power out of Washington, but an awful lot of it is going to go to the state level. The truth is, a lot of you want us to figure out a way to skip the state and go right to you.”
The real truth is, Gingrich and his allies understand that too much decentralization is not good for the moneyed interests they represent. That’s because many local governments are more responsive to ordinary citizens than are state legislatures. City Council members listen more closely to their neighbors than to out-of-town lobbyists. As a result, they’re more apt to regulate guns, ban indoor smoking, control rents, outlaw billboards, regulate hog farming and implement strict zoning rules. That upsets corporate interests, who often find themselves on the losing end of local battles. So those interests are going to state legislators, with whom they have more pull, and asking them to preempt local ordinances. And the legislators are listening:
- This past December, New York Senate majority leader Joseph Bruno announced a plan to wipe out New York City’s rent regulations by 1999. “We are going to liberate the city,” the upstate legislator told a group of landlords at a Manhattan meeting. Landlords donated more than $700,000 to Bruno and his Republican allies in 1996, including $174,000 to a committee controlled directly by the majority leader.
- The Missouri legislature, under pressure from the convenience-store industry, stripped away the rights of cities and counties to regulate overnight store security in 1995. One year earlier, a robber had bludgeoned three store clerks to death in Columbia, prompting that city’s council members to adopt strict safety regulations. The new law nullified those rules.
- Colorado state lawmakers tried last spring to prevent Denver from setting its own minimum wage. Unions and grass-roots activists were promoting a ballot measure that would have eventually raised the hourly wage to $7.15. Governor Roy Romer vetoed the bill, and voters defeated the referendum.
The two most effective champions of preemption are the National Rifle Association and the tobacco industry. That’s not because they have more clout than other industries in state legislatures; the insurance, banking, medical and real estate lobbies often have an easier time getting their laws passed. Rather, it’s because tobacco and gun supporters have more of a need to preempt local laws. Both have watched in dismay as grass-roots activists have won restrictions on handgun use, limits on indoor smoking and ordinances making it harder to sell cigarettes to children. In response, groups like the N.R.A. and Tobacco Institute have taken preemption campaigns from statehouse to statehouse, without much fanfare, creating a juggernaut that their opponents are only now learning how to fight.
THE GRAND CHAMPION OF THIS TACTIC is the 3-million-member N.R.A., which has made preemption one of its top priorities and has managed to wipe out local gun ordinances in more than forty states. “We believe preemption is essential to us,” says N.R.A. spokesman Chip Walker. “It creates a unified body of law throughout a state, so an individual who has a firearm, as long as they’re in the state boundaries, they know what the laws are.”
That’s the most common argument preemption advocates make: A “patchwork” of local ordinances can turn a law abiding citizen into an accidental outlaw. An N.R.A. position paper cautions, “If charged with a violation of an obscure local ordinance, the honest gun owner faces, at the very least, great expense and devotion of time to clearing his or her good name in court.”
That argument loses some weight when you realize that citizens cope with legal patchworks such as speed limits all the time. Besides, it obscures the practical reasons the N.R.A. wants preemption: It takes time and money to try to stop every local government that wants to regulate firearms. Even if the N.R.A. could do that, what chance would it have in a city like Madison, Wisconsin, or Chapel Hill, North Carolina, where the committed anti-gun activists are likely to have considerable sway? “Until pretty recently, there wasn’t a true gun control debate,” says Eric Gorovitz, legal director of the Trauma Foundation in San Francisco. “Now there’s a debate. The change in the politics of gun control between 1994 and 1996 has been incredibly dramatic.”
It’s easier for lobbies like the N.R.A. to work at a state level: Legislators and governors are far removed from the people who elected them, and they look to lobbyists for information, campaign contributions and the occasional steak dinner. Take North Carolina. In the 1990 elections, the N.R.A.’s Political Victory Fund gave $6,300 to thirty-two state legislators there. Then Chapel Hill and Durham, the state’s most liberal cities, began restricting firearms, sending out an alarm signal to gun owners. By 1994 the organization had increased its contributions almost six-fold, giving $36,775 to ninety legislators, according to an analysis by the Institute for Southern Studies. Though the contributions were small by national standards—most of them $500 or less—they were significant in rural districts, where a few thousand dollars can win an election.
Starting in 1994, N.R.A. lobbyist Joe McClees began entertaining legislators in earnest, throwing seafood parties, giving small Christmas gifts and taking lawmakers out to dinner. It paid off: The next year the newly Republican statehouse passed a bill preempting almost all local gun control. The measure, says Tom Goolsby, a former pro-gun lobbyist, “is a much more efficient way to make sure that overzealous politicians on a local level, who don’t understand our constitutional rights, are not allowed to strip people of those rights.”
Sylvia Kerckhoff didn’t see it that way. As a Durham City Council member, Kerckhoff had spent months building consensus on a set of local ordinances restricting the use of firearms in public places. “We were just becoming alarmed at the number of guns being carried by people in the city, and people coming into City Hall with guns and brandishing them on occasion.” The resulting ordinances—resisted by gun owners at every step—were weak, but they helped catapult Kerckhoff into the mayor’s office. Suddenly, she was watching the Statehouse gut those ordinances.
Some gun-control activists tried to defeat the bill in the Democratic Senate when the legislature reconvened last year. “We started early, because we thought it was going to be taken up early.” says Lisa Price, executive director of North Carolinians Against Gun Violence. “Time went on and it wasn’t going anywhere, and we were beginning to feel a great sense of relief. Then—wham! Toward the very end of the session, we learned it had gone from a simmer to a boil. The N.R.A. communicated, and the Governor let the [Senate leadership] know that he’d like to move it along. We couldn’t stop it.” The bill passed the Senate, 40 to 9.
Democratic Governor Jim Hunt would not discuss his communications with the N.R.A. but endorsed the bill, saying through a spokeswoman that he favored “a consistent statewide approach.” The N.R.A. reciprocated by endorsing him for reelection over one of the organization’s own Republican water carriers.
CHIP WALKER OF THE N.R.A. calls his organization’s preemption strategy a “slow and steady” effort, taking on two or three states a year. By contrast, the tobacco industry made forays into nineteen states in 1996, claiming victories in Delaware and South Carolina and bringing the tally of states with preemption laws to twenty-eight.
The tobacco industry’s tactics are also more sophisticated than the N.R.A.’s. Lobbyists come into state capitals with “model legislation” to reduce sales of cigarettes to children, making the industry look like a good corporate citizen. But those proposals are weak and full of loopholes. Tacked on are preemption clauses that handcuff local officials who genuinely want to crack down on youth smoking.
“Preemption comes in a variety of packages, almost always disguised in good-guy wrapping,” says Actions Speak Louder Than Words, a recent study by the American Cancer Society and four other national health organizations. The report cites a memo from the Smokeless Tobacco Council, describing a 1991 meeting between Philip Morris executives and California lawmakers. “The Speaker made clear a significantly more proactive tobacco control effort would be needed to secure preemption. Out of these discussions the notion of a Comprehensive Tobacco Control Act (that would provide preemption) evolved,” the memo says. “An act would have to have the ‘appearance’ of a comprehensive scheme.”
Sometimes cigarette companies do their work in public. In 1994 Philip Morris championed California’s Proposition 188, which would have preempted hundreds of local smoking ordinances while implementing some weak statewide measures. The tobacco industry and its allies spent $19 million trying to pass the ballot initiative, but amid charges that Philip Morris had misled voters, the referendum went down by a 71-to-30 margin.
Other times, the industry likes working in secret, pushing other trade groups into the foreground. Grocers, food merchants and convenience-store owners—who carry more credibility with the public—serve as fronts. “We will certainly be assisting the retail community, because they are our allies, they are our customers,” says Walker Merryman, head of public affairs for the Tobacco Institute. “But for anyone to say that the tobacco industry is attempting to force the issue is absolutely incorrect.”
VICTOR CRAWFORD, A FORMER TOBACCO INSTITUTE LOBBYIST, offered a different perspective before he died of throat cancer last March. “We could never win at the local level,” he said. “All the health advocates—the ones that, unfortunately, I used to call ‘health Nazis’—they’re all local activists who run the little political organizations. They may live next door to the mayor, or the city councilman may be his or her brother-in-law. When they’ve got their friends and neighbors out there in the audience who want this bill, we get killed. So the Tobacco Institute and the tobacco companies’ first priority has always been to preempt the field. The health advocates can’t compete with me on a state level. They never could.”
In Indiana last year, the front group for a bill preempting cities and counties from restricting the sale of tobacco was the Indiana Grocery and Convenience Store Association, whose members include tobacco companies along with retailers and other suppliers. Senate Bill 106 would have criminalized the possession of tobacco by children—but it also would have shackled local governments that want to regulate the sale and marketing of cigarettes and chewing tobacco. (Currently, only three Indiana counties, including Indianapolis’s, have such restrictions.)
Joseph Lackey, I.G.C.S.A.’s president, says he lobbied for preemption because it would be too confusing for supermarkets and other chains to keep track of the local ordinances in Indiana’s ninety-two counties. “A lot of politicians are saying, `I’m opposed to minors using tobacco,'” Lackey says. “But if they want to stop minors from using tobacco, they need to preempt local ordinances and get serious about it. It’s like having a standard-gauge railroad track, so everything runs smoothly.”
But opponents, including the American Cancer Society, American Heart Association, and American Lung Association, were quick to dismiss the patchwork argument, saying that the grocers were remaining mysteriously quiet about the other local ordinances they have to contend with, such as zoning restrictions and sign laws. They argued that I.G.C.S.A. was just shilling for the less-beloved tobacco industry. As evidence, they pointed to an internal newsletter from the Food Marketing Institute, which identified Indiana as a “priority target state” for the Tobacco Institute’s national preemption campaign, and urged grocers “to work with representatives from the tobacco industry to ensure that balanced legislation is passed.” What’s more, tobacco lobbyists began prowling the legislature every time the bill came up. “They were like hunting dogs,” says Joe Caparo of the American Lung Association of Indiana. “You could watch which way they’re pointing.”
The battle over Senate Bill 106 was intense, escalating after the measure passed the legislature and got to Governor Evan Bayh’s desk for signature. Bayh vetoed the bill, calling it a “centralized, big-government bill” and warning that the weak teen-smoking provisions were a “smoke screen.”
A few years ago, anti-smoking activists might not have been savvy enough to stop the Indiana law. That’s because, until recently, many advocates didn’t understand the threat preemption poses. “We fought a five- or six-year-battle to convince people on our side that preemption was the most important tool that Philip Morris had,” says Mark Pertschuk, president of Americans for Nonsmokers’ Rights.
The word has finally filtered down. “Now that the health community gets it, they’re willing to go to the mat and fight it,” says Robin Hobart, Americans for Nonsmokers’ Rights’ co-director. Groups like hers have assembled a “preemption strike force” that will work to overturn existing laws and prevent new ones from being enacted. The strike force is currently conducting workshops across the United States, coordinating not only with health organizations but also with P.T.A.s, African-American churches and other potential allies. This new coalition hardly levels the playing field, but at least it gives supporters of the public health a chance.
They’ll need that chance. With both Republicans and Democrats embracing the New Federalism, industry will no doubt focus more intensely on the statehouses during Gingrich’s second term as Speaker. As a result, preemption will become an even more significant strategy for unpopular corporate and political interests. As grassroots organizers get more sophisticated, their adversaries—tobacco companies, hog-farming interests, landlords, the gun lobby—are right now forming strike forces of their own.
