Signing House Bill 40 into law, Gov. Greg Abbott struck what he characterized as an “incredibly important” blow for liberty and property rights and effectively reversed the will of voters in Denton, who by a decisive margin last November voted to ban fracking in their community.
“This law ensures that Texas avoids a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city,” Abbott said at the signing ceremony.
It was not the first time that Abbott had invoked the menace of “the patchwork quilt.”
“Texas is being Californianized and you may not even be noticing it,” Abbott said in a speech to the conservative Texas Public Policy Foundation weeks before his inauguration. “It’s being done at the city level with bag bans, fracking bans, tree-cutting bans. We’re forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model.”
With those words, Abbott opened a second front in the Republican war on government intrusion. If Washington is the familiar foe, the new enemy lurks in city halls across Texas, and the signing of HB 40 was the signal victory.
But the bill may also prove to be its singular victory this legislative session.
The Texas Municipal League identified 50 pieces of legislation intent on keeping local governments from, among other things, banning plastic bags, enforcing certain tree ordinances, banning open carry of guns on city property or using cameras for traffic enforcement.
But the league’s executive director, Bennett Sandlin, said last week,”We’ve defeated most of these so far, knock on wood. Check back with me in June.”
Sandlin has nonetheless felt under siege by what amounted to a new take, from at least some conservative members of the Legislature, on the virtues of local government. “Local control, we used to think it was a conservative idea and a good thing,” he said. “Now we think it’s a bad thing and it’s the opposite of liberty, which is the new good thing,”
Meanwhile, he said, state government has emerged as “the Goldilocks form of government. The federal government is big and bad. Local government is small and bad. And somehow, the state government is just right.”
“This was brand new this session,” Sandlin said. “It kind of caught us by surprise.”
Glenn Smith, who directs the Democratic-affiliated Progress Texas PAC, said the Republican majority at the Capitol is especially interested in bringing Democratic strongholds — whether it’s Austin, San Antonio, Houston or Dallas — in line with the rest of the state.
“There is no way to turn this into some sort of consistent, logical and coherent political philosophy,” Smith said. “Here is the beginning and end of it to me: They can quickly set democratic results aside to quickly get their way.”
“If they’re worried about patchwork quilts, what happened to state’s rights? There are 50 quilts.” Smith added.
A model for other states?
State Rep. Phil King, chairman of the House Committee on State and Federal Power and Responsibility and a co-author of HB 40, said it would be a mistake to see the bill as the opening volley in a war on local autonomy. It was simply a response to the extraordinary circumstance of a community outlawing fracking, an unprecedented move that he said demanded that the state clarify who regulates oil and gas discovery and development in the state.
“I don’t see this as a movement or anything like that,” King said. But King, who also serves as national chairman of the conservative American Legislative Exchange Council, said he thinks that through ALEC, HB 40 could serve as model legislation for other states contending with the same issue.
The real, and longstanding, impetus behind efforts to rein in local governance is not surprising, Sandlin said.
“I think it’s business-oriented lobbies that don’t want to have to work with hundreds of cites in Texas; it’s easier to lobby the state than individual cities, so you just cut cities off at the knees at the state level,” he said.
The Texas Municipal League worked to make improvements in HB 40 and leave communities some authority over above ground issues, especially setbacks for drilling — which create a buffer between homes and wells. Sandlin said that’s the best they could do with a bill that had the support of the state’s most powerful interests; the league did not oppose the final version.
Matthew Esbaugh-Sosa, a political scientist at the University of North Texas in Denton, said unique circumstances in Denton propelled HB 40 to passage, not a broader disenchantment with local government.
“I have a feeling they don’t gain a lot of traction without the fracking ban in Denton because to mobilize and motivate legislators that meet every other year you need some push — and that push was oil and gas money,” he said.
John Colyandro, who was policy director for the Abbott campaign, said the fracking ban fed concerns about the appropriate roles of state and local government “that had started to catch the attention of the Legislature.”
Despite Abbott’s new focus on the “patchwork quilt,” his campaign did not spell out an agenda for addressing it in his very detailed policy blueprint or push for similar legislation this session.
“The Denton fracking ban was the trigger for legislative action,” said Colyandro, now executive director of the Texas Conservative Coalition, the conservative caucus of the Texas Legislature.
Abbott’s communications director, Matt Hirsch, said the governor believes that even without other legislation, HB 40 and the governor’s expressed concerns are a shot across the bow local government should heed.
A ‘win-win’ for conservatives
Turning conservative rhetoric usually directed at Washington toward liberal enclaves in Texas is “a win-win for conservatives,” said University of Houston political scientist Brandon Rottinghaus. It allows Republicans to put an ideological spin on doing the usual business of satisfying their business constituency, he said.
“It’s kind of a perfect political synergy because it allows the Republicans to placate conservative interests in the party but also give business groups a shield against local activism,” Rottinghaus said.
For Republicans, he said, “I think it’s kind of selective political opportunism.”
For Kirby Goidel, a professor at the Public Policy Research Institute at Texas A&M University, the push to rein in local governments echoes a push by Republicans in years past to increase state government power “so that states could serve as laboratories of democracy.”
“What they really wanted, of course, was to limit national government authority,” Goidel said. “This became apparent when states like California went above and beyond national standards for environmental regulation and suddenly we needed a predictable regulatory environment for business and industry.”
In a March opinion article in the Dallas Morning News, Richard Parker, author of the recent book “Lone Star Nation: How Texas Will Transform America,” called them “Big Government Republicans … trying to centralize power in the hands, literally, of the state.”
“The man leading this parade of Big Government Republicans,” Parker wrote, “is none other than the governor, Greg Abbott, who has made his living railing at government overreach — of the federal variety, of course.”
Colyandro, Abbott’s former campaign policy director, said Parker’s got it wrong.
“Very often in this debate people are urged rhetorically: `If you don’t like federal encroachments, you shouldn’t be for state encroachments,’ ” Colyandro said. But that argument, he said, fails to recognize that local governments are a creature of the state and that the Legislature is charged with protecting the rights of individuals articulated in the U.S. and Texas constitutions.
Wayne Thorburn, former executive director of the Texas GOP and author of “Red State: An Insider’s Story of How the GOP Came to Dominate Texas Politics,” said those rights are being trampled by some local governments.
“Let’s review what these local ordinances are attempting to do: ban merchants from freely distributing plastic bags; require merchants to install unisex bathrooms; restricting a specific process for obtaining oil and gas from private property, thereby limiting mineral rights attached to private property,” Thorburn said. “In each instance, it is the local government that is imposing `big government’ controls and restrictions on individual liberty.
“Living in Austin, I am well aware of the nanny state approach that can be taken by liberals for their definition of the common good.”
Two views from Dallas
State Rep. Rafael Anchia, D-Dallas, said that the constituents he heard from were almost unanimous in their opposition to HB 40 because they fear a Dallas drilling ordinance approved in 2013 after careful consideration by the city council — restricting but not banning drilling — will now be ripe for challenge because HB 40 requires that any local restrictions be “commercially reasonable.”
“So the presumption is a commercial presumption, not a quality of life presumption,” he said.“I suspect that there will be lawsuits against the Dallas ordinance.”
“Using the ‘patchwork quilt’ analogy, I would say that communities across the state are unique and special and different, and if you ask any of their chambers of commerce, they will tell you they are special and great and Texas is not homogeneous; rather, it is diverse and complex,” Anchia said.
“And when I think about a quilt, I think about the stitching together of different communities and peoples and ideas, and a healthy respect for local control would acknowledge those differences.”
Dallas is also represented by freshman state Sen. Don Huffines, a real estate developer who authored the most sweeping preemption legislation introduced this session. It would have barred local governments from implementing any ordinances that are more stringent than state law on the same subject, unless explicitly authorized by statute.
The bill is very unlikely to emerge from the session, but, Huffines said, he has only begun to fight.
“This is national conversation that’s going on all across the country where we’ve got liberal subdivisions that are acting outside their state mandates,” Huffines said. “This issue is never going to go away. We’re going to work every session because it is so critical that we follow the rule of law.”
“We believe in liberty,” said Jess Fields, a senior policy analyst in the Center for Local Governance at the Texas Public Policy Foundation. “We believe in local decision-making, but we don’t believe local government should be able to infringe on people’s basic rights.”
Jonathan Tilove is the Statesman’s chief political writer. He writes about Texas politics in the First Reading blog at Statesman.com.
Sampling of legislation filed during the 84th session of the Legislature that would limit the power of local government.
Would ban cities from using cameras for traffic light enforcement?
Bill: HB 142
Bill: HB 3817
Bill: SB 1340
Authors: Huffines, Bettencourt, Birdwell, Burton, Campbell, Creighton , Estes, Hall, Kolkhorst, Lucio, Nelson, Perry, Larry Taylor, Uresti
Would keep cities from adopting regulations prohibiting the refusal to lease property because of the renter’s source of income.
Bill: SB 267
Authors: Perry, Hall, Huffines
Would ban cities from prohibiting use of propane tanks on residential property.
Bill: HB 748
Would ban cities from prohibiting open carry of guns on city-owned or city-leased property.
Bill: HB 910
Authors: Phillips, Flynn, James White, Riddle, Guillen
Would keep cities from hiring lobbyists.
Bill: HB 1257
Bill: SB 1862
Would ban cities from enforcing certain ordinances on tree removal.
Bill: HB 1442
Would ban cities from adopting ordinances that create a protected class or prohibit discrimination on a basis not contained in state laws.
Bill: HB 1556
Would keep cities from prohibiting any practice that is not unlawful under state law.
Bill: HB 1911
Authors: Leach, Smithee, Shaheen, James White, Laubenberg
Would keep cities from adopting anti-plastic bag ordinances.
Bill: HB 1939
Author: Rinaldi, Springer
Would ban cities from adopting a policy, rule or order that prohibits the enforcement of state or federal laws related to immigration.
Bill: SB 185
Would ban cities from adopting any regulations that aren’t expressly authorized by state law.
Bill: SB 343
Cities can’t adopt licensing that is more stringent or inconsistent with state law.
Bill: SB 1673
Would keep cities from taking adverse action against a person based on that person’s sincerely held religious belief that marriage is between one man and one woman.
Bill: SB 1799
Author: Larry Taylor
Bill: HB 3602
Authors: Bell, Springer
Would ban cities from regulating firearms.
Bill: HB 4061
Author: James White
(Source: Texas Municipal League)