by Nathan Warf

In our federal system of government, some responsibilities belong to the national government, some belong to the states, and some have traditionally been left to local governments. Republicans have long claimed to favor local control under the theory that the government closest to the people can be more responsive and effective.

In practice, however, Republicans have been very inconsistent in respecting local power. Consider, for example, the federal intervention in education during the Bush Administration or Republican support for continuing to criminalize marijuana at the federal level.[1] In like manner, Tennessee Republicans are pushing several bills to strip local governments of the power to govern. This likely comes as a surprise to Tennessee voters who elected these individuals believing they favored smaller government.

·      Education: As mentioned the recent post on corruption, the TN Legislature approved a plan to pilot Gov. Lee’s education savings accounts. The program did not seek volunteers; it imposed a scheme on Davidson and Shelby counties against their will, leading to a costly lawsuit that has not yet been resolved.[2] (NOTE: The disaster that is TN education policy will be treated in greater detail in a separate blog post.)

·      Oil & Gas Pipelines: Activists in the Memphis area fought against the Byhalia Pipeline, a project that would add nearly fifty miles of pipeline for crude oil through the city. The project raised concerns both about racial justice and the environment, as the pipeline would be built over an aquifer that provides drinking water to over a million people. After the company announced that they were dropping plans to build the pipeline, Republicans passed legislation to strip local governments of the ability to prevent fossil fuel infrastructure projects from being built in their jurisdictions.[3]

·      Short-term Home Rentals: As Erica Francis reports, companies like Airbnb collect a lot of taxes for Tennessee, and they allow property investors to raise a lot of revenue.[4] Yet short-term rentals can bring problems as well—noise disturbances, increased traffic, higher housing costs, in part because the supply of affordable housing drops as landlords move into the short-term rental market.[5] Nashville is a popular short-term rental destination. In certain residential areas, the city has required short-term rentals be owner-occupied, meaning entire properties can’t be devoted to rentals all year long. Communities could also voluntarily be rezoned to prevent short-term rentals altogether.

Airbnb has fought back aggressively. They have donated thousands of dollars to politicians who sit on relevant committees in the TN Legislature. One of these, Sen. John Stevens, sponsored legislation to strip localities of the ability to regulate their own short-term rental markets. Communities could no longer voluntarily be rezoned to exclude short-term rentals. Moreover, the bill would make the term “owner-occupied” meaningless. Currently, the term refers to a property where the owner lives and either rents out a room or occasionally rents the entire property. The bill would redefine “owner-occupied” to cover properties where the owner lives elsewhere but “has a definite intention to return.” As detractors point out, this provision would be difficult to regulate.[6]

·      Ranked Choice Voting: Indicted Senator Brian Kelsey is pushing a bill to prohibit local jurisdictions from employing ranked-choice voting (RCV). RCV works as it sounds—voters express their preferences by ranking candidates. If no candidate receives a majority of the vote, RCV permits an instant-runoff. The candidate with the fewest votes is eliminated. Voters who favored this candidate will have their votes count toward their second choice. This process continues until there is a winner. It’s not that complicated. It decreases polarization as successful candidates must generally appeal to the majority of the electorate, not to the extremes, as in our current primary system.

Senator Kelsey said that his bill to prevent RCV is “not a partisan issue … [but] an issue about voter clarity.” Here is his explanation of why RCV isn’t clear:

Instead of voting for a name, you would rank candidates, for example, one through seven. And then if for all those people who voted for the seventh place receiving vote person, those, then your first choice would be thrown out, and then you come back and they go to see okay, well, now how who did you vote for it for your second choice, and then you got to reallocate those votes that way, and then you got to go back and recount them. So you can see, this can take many rounds, and can be very confusing.

Therefore, because he can’t understand RCV, he doesn’t want anyone in TN to use RCV.[7]

·      Public Health: Sadly, COVID-19 was politicized from the beginning. Even more unfortunate, the libertarian wing of the Republican Party has effectively set policy. This wing doesn’t believe in public health; it’s all about individual choices. There is no logic behind a view that assumes that individual choices exist in a vacuum. Individual choices affect more than the individuals who make them. A drunk driver might just crash his own vehicle, but he might just as easily injure innocents.

Nonetheless, TN lawmakers are happy to cater to the ill-conceived ideas popular among their constituents. In the early morning hours on Saturday, October 30, a special session of the TN Legislature adjourned after passing a series of measures to strip local businesses, schools, and health departments of their ability to fight the pandemic. Lawmakers limited the ability to require masks, vaccines, or proof of negative tests. In a state that generally restricts access to government assistance, they created special unemployment benefits for people who quit their jobs because of vaccine requirements. They also gave the TN health commissioner exclusive authority over quarantine regulations, stripping power from local health departments.[8]

Why should we care?

When the state overrides local governments in a direction we like, it’s easy to cheer. We should be cautious, however. The state government might continue to seize power and find no limit. An opposing party might take over state government and override local government in a different direction.

Republicans are correct to acknowledge that every policy question does not require a national solution. Similarly, policy questions don’t always require state solutions either. There is a very real value in allowing communities ample room to make important decisions for themselves.

[1] See “H.R. 1 – No Child Left Behind Act of 2001,” https://www.congress.gov/bill/107th-congress/house-bill/1; Jonathan Weisman, “House Votes to Decriminalize Marijuana.” 1 April 2022.  https://www.nytimes.com/2022/04/01/us/politics/marijuana-legalization.html.

[2] See Timms, supra note 3.

[3] See, e.g., Toby Sells, “Byhalia Pipeline Connection Project Abandoned,” Memphis Flyer, 2 July 2021. https://www.memphisflyer.com/byahalia-pipeline-connection-project-abandoned; Jonathan Mattise and Adrian Sainz, “Tennessee Bill Unraveling Local Say Over Pipelines Advances,” Associated Press, 25 March 2022. https://www.williamsonherald.com/news/local_news/tennessee-bill-unraveling-local-say-over-pipelines-advances/article_9c4075a0-ac72-11ec-82e0-573add5e185c.html.

[4] See Erica Francis, “Bill that would change rules for short-term rentals passes House subcommittee.” WKRN.com, 25 March 2022. https://www.wkrn.com/special-reports/nashville-forward/bill-that-would-change-rules-for-short-term-rentals-in-tn-passes-house-subcommittee/.

[5] See Scott Zamost et. al. “Unwanted Guests: Airbnb, cities battle over illegal short-term rentals,” CNBC. 24 May 2018. https://www.cnbc.com/2018/05/23/unwelcome-guests-airbnb-cities-battle-over-illegal-short-term-rentals.html; Josh Bivens, “The Economic Costs and Benefits of Airbnb,” Economic Policy Institute, 30 January 2019. https://files.epi.org/pdf/157766.pdf.

 [6] See Phil Williams, “Revealed: Airbnb Legislation Shows how Capitol Hill Culture Affects Tennessee Communities,” News Channel 5, 17 March 2022. https://www.newschannel5.com/news/newschannel-5-investigates/revealed-airbnb-legislation-shows-how-capitol-hill-culture-affects-tennessee-communities; Adam Friedman and Cassandra Stephenson, “Bill to overrule local regulation of short-term rentals passes House subcommittee,” The Tennessean, 17 March 2022. https://www.tennessean.com/story/news/local/2022/03/17/tennessee-house-subcommittee-passes-bill-removing-local-control-airbnbs/7064239001/.

[7] Jackson Baker, “Kelsey Bill would Ban Ranked Choice Voting,” Memphis Flyer, 1 February 2022. https://www.memphisflyer.com/kelsey-bill-would-ban-ranked-choice-voting.

[8] See Yue Stella Yu and Mariah Timms, “Tennessee lawmakers restrict authority of schools, local health departments over COVID-19,” The Tennessean, 30 Oct. 2021. https://www.tennessean.com/story/news/2021/10/30/tennessee-lawmakers-restrict-authority-schools-local-health-departments-over-covid-19/6191482001/; Yue Stella Yu, “How Tennessee’s COVID-19 restrictions will change after the three-day special session,” The Tennesseean, 1 November 2021. https://www.tennessean.com/story/news/2021/11/01/tennessee-covid-19-restrictions-change-require-masks-vaccines/6211808001/. Text of S.B. 14, https://legiscan.com/TN/text/HB9077/id/2450913.