The Idaho state capitol in winter.
Californians won't just be voting for the next president this November: On Tuesday, their secretary of state said a referendum on raising the minimum wage to $15 an hour would also be on the statewide ballot.
If it passes, it will be the biggest win yet for the Fight for 15 movement, which is pushing to raise the minimum wage across America. About 1.8 million workers in California currently make the state minimum of $10, with 3.3 million making less than $15 an hour.
But a ballot win in America's most populous state would do more than just raise pay. It would demonstrate one way to overcome a highly successful tactic used by industry groups and conservative lawmakers to roll back local wage increases: the passing of statewide laws that forbid towns and cities from raising the minimum wage.
So-called preemption laws, prohibiting local lawmakers from raising city minimums, have been promoted by the American Legislative Exchange Council (ALEC), a conservative, industry-backed nonprofit. On Monday, Idaho became the latest state to pass such a law, and much of the language of the bill — banning “political subdivisions” of the state from lifting pay for workers — is identical to draft legislation prepared by ALEC.
Eighteen other states now have comparable laws on the books, according to the National Employment Law Project, a left-leaning advocacy group. Many were passed swiftly and quietly in recent months, in states with cities where worker groups and labor-friendly local governments are pushing to raise wages.
The state-level laws are part of a playbook long used by industry. Preemption strategy first took off in the 1990s with the help of tobacco and gun lobbyists, according to Mark Pertschuk, director of Grassroots Change, an anti-preemption group that focuses on public health measures.
Industry advocates worked with state lawmakers to curb citywide smoking bans and firearm regulation, and today preemption law has been applied to bans on everything from plastic bags to fracking to pesticides. But many of the laws related to smoking were rolled back by anti-tobacco groups in the 2000s, and Pertschuk is optimistic that lawmakers could be similarly brought around on the minimum wage.
“Proponents of preemption are like cockroaches,” he told BuzzFeed News. “You shine a light on what they’re doing, and they tend to run away. And the state legislators who are doing their bidding stop doing their bidding.”
Ben Wilterdink, ALEC's Director of Commerce, Insurance and Economic Development, said ALEC is dedicated to the preservation of states’ governing authority and that preemption laws are "just modifications and clarifications to how the state will allow political subdivisions to govern themselves."
Labor advocates have no near-term hope of raising the federal minimum wage and few friends in the numerous Republican-controlled legislatures and state houses across the country. So the movement has focused its attention instead on cities and towns, which often have more labor-friendly governments.
In response, industry groups go right back to state-level lawmakers. Wilterdink said that the Constitution has always empowered states to exert control over cities' minimum wages and labor laws, should they choose to.
“When political subdivisions start to enact provisions that are contrary to economic growth and stability, they will appropriately be reined in by the state, if that’s what the state decides,” he told BuzzFeed News. “Those who claim that ‘local control’ supersedes state authority misunderstand the rule of law.”
Other industry groups have used the same tactic to prevent changing workplace standards. In addition to ALEC, the National Restaurant Association has pushed for state preemption laws to supersede local paid sick-leave mandates. They’ve succeeded in 13 states, as tallied by the National Partnership for Women & Families, a pro-labor organization. Conservative groups have also promoted preemption to prevent local anti-discrimination measures.
On Wednesday — just hours after this story was published — Republican lawmakers in North Carolina passed a preemption law that overturned all local ordinances against LGBT discrimination in the state. Governor Pat McCrory said the law would "stop the breach of basic privacy and etiquette" and "ensure privacy in bathrooms and locker rooms."
The preemption strategy has proven effective. By focusing on passing laws at the state level, lobbyists devote their considerable — but still finite — resources on 50 capitols, rather than spreading themselves thin over hundreds of cities and localities, Pertschuk said.
In one of the most extreme cases, the state Senate in Arizona passed a law this month that would withhold state funds for cities that pass their own wage or hour standards. In effect, the state would de-fund the fire and police departments of cities that raise their minimum wage. The house also passed a bill on March 1 that forbade cities from requiring employers to provide workers with paid sick leave or vacation days.
Asked whether withholding state funds for cities that pass local regulations might become a feature of a new ALEC "model bill" to be replicated in other states, Wilterdink said, "It's possible. The jury’s out on that ... It may be something that works in Arizona that doesn’t work anywhere else."
In Alabama last month, state lawmakers used preemption to override a minimum wage increase to $10.10 from $7.25 in Birmingham, undoing the work of a local movement to support the raise there, the first to pass in the Deep South.
Opponents of preemption of this kind say they’ve had other successes in rallying voters to oppose the bills, whether via pressure campaigns or state-level ballot initiatives. Many wage, hour, and paid-sick-day bills poll well and have sizable public support.
“That’s why ALEC is doing preemption — because they know these policies will pass [at the voting booth], because they know there’s support for them," Ryan Johnson, director of the union-backed Fairness Project, which organizes campaigns for ballot measures like the California wage raise, told BuzzFeed News. "From a kitchen-table economics perspective, people recognize that people aren’t making enough money."
Johnson acknowledges that ballot initiatives take time, resources, and energy — to draft legal language, gather the necessary signatures, and turn out the vote. Californian organizers collected more than 500,000 signatures to ultimately earn a place for their wage increase on the ballot this week.
“We founded the campaign because legislatures weren’t doing anything," said Johnson. "But the faster and cheaper way to make policy is when the people who are elected to make policy make policy."
Updated with news of a new preemption law passed in North Carolina after the publication of this article.
Cora Lewis is a business reporter for BuzzFeed News and is based in New York. Lewis reports on labor.
Contact Cora Lewis at firstname.lastname@example.org.
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