Dr. Russell Arben Fox, Friends University
Kansas is officially a Home Rule state. It has been since 1961, when an amendment to the Kansas state constitution officially declared that Kansas cities are “empowered to determine their local affairs…except when” such actions are “limited or prohibited” by an act of the state legislature. That’s an important acknowledgement of local democracy—or at least potentially so.
In my observation over the years, though, our elected representatives in Topeka tend to pay far more attention to the “except when” clause, thus leading the principle of Home Rule to be observed more often in the breach than in fact.
That’s not unusual, unfortunately. If you research which states allow Home Rule, as opposed to those which adopt “Dillon’s Rule”—a 19th-century judicial ruling which stipulated that the residents of cities have no inherent democratic right to rule themselves, and possess the power of local government only so far as states grant it to them—you’ll find that most of those states significantly limit the authority of their cities.
In Kansas, the language of our Home Rule amendment presents a fairly easy limitation for the state legislature to make use of: simply impose some kind of broad, state-wide prohibition, even if the issue is an entirely local one, and suddenly cities may be forbidden from governing themselves in that area whatsoever. A bill being debated in Topeka is just another example of this practice.
The bill, HB 2447, aims to take away from all Kansas cities the ability to ban or restrict within their borders the sale of any product that is otherwise legal elsewhere in the state. Pushed by the Kansas Chamber of Commerce, its ostensible purpose is to prevent “disuniform business conditions across the state,” which is another way of saying that the people who live in some cities might be persuaded to regulate businesses in response to local problems in a way different from how other cities might. In reality, it’s not difficult to see this bill as reflecting an ideological disposition against giving power to those local residents—specifically, those in urban areas--who might prioritize certain social concerns over the interests of business owners.
The specific provenance of the bill is a pet store in Wichita, which sells dogs from breeders in a manner than many concerned about the size of the city’s population of abandoned and unhealthy pets wish to prevent. (Wichita’s citizen-run Animal Control Advisory Board has recommended action, but Wichita’s city council has as yet taken none, meaning this bill exists in response to a complete hypothetical.) In reality, a bill this broad could potentially prevent any Kansas city from imposing almost any regulation upon businesses within their borders. It also presents a sneaky return to the attempt to stop environmentally concerned Kansans who are pushing their cities to consider limitations on plastic bag use in grocery stores, an invasive bill which the Kansas Senate wisely killed last month.
In the face of criticism, promoters of the legislation have added qualifications, guaranteeing that the bill wouldn’t prevent Kansas cities from using their zoning power to regulate liquor stores, strip clubs, and the like. But in my view, that’s just putting Home Rule lipstick on a statist pig. John Doll, a state senator from Garden City, when voting down the aforementioned ban on local plastic bag bans, correctly expressed frustration at the legislature’s frequent “lack of respect” for “the ability of county and city governments” to determine what is best “for their particular communities.” Let’s hope a majority of Kansas legislators agree with Doll, and vote down this overreaching bill as well.