The power struggle was supposed to end 100 years ago. It’s still going on. 

In the century since Wisconsin’s constitution handed cities and villages control of their own operations, this principle of “home rule” has been repeatedly strained. Now the Milwaukee Common Council is pushing back against state legislation that dictates how the city runs its police and fire departments, how it pays for its streetcar system and how it asks voters for their opinions. 

City officials say Republican legislators insisted on those and other conditions as part of Act 12, the law passed last summer that gives the city and county new sales tax powers and boosts shared revenue for local governments statewide.  

Although the city was pleading for the desperately needed financial aid, council members don’t think the state should have attached that many strings. In June, they directed city lobbyists to push for repealing 17 provisions of Act 12 and asked City Attorney Tearman Spencer to study possible litigation, although Mayor Cavalier Johnson has been wary of filing a lawsuit. Spencer’s office was expected to report its findings to the council by Jan. 1. 

Scholars say the restrictions are part of a national trend of GOP-controlled state legislatures preempting largely Democratic cities’ home rule powers to advance conservative agendas by, for example, overriding gun restrictions and reversing labor- and tenant-rights policies. But Wisconsin’s rocky home rule history goes back much further. 

“Until the 1920s, the state Legislature routinely considered hundreds of bills affecting the local matters of individual cities,” Wisconsin Legislative Council attorney Patrick Ward wrote in a May 2023 paper. 

“Everybody agreed that was a dumb way to run local government,” says Jerry Deschane, executive director of the League of Wisconsin Municipalities. 

In 1921, legislators granted cities broad power “to act for the government and good order of the city, for its commercial benefit, and for the health, safety and welfare of the public.” Similar authority for villages followed in 1933. And in 1924, voters approved a constitutional amendment empowering cities and villages to “determine their local affairs and government,” restricted only by other constitutional provisions and by state laws on matters “of statewide concern” that affect all municipalities equally. 

Philip Rocco, Marquette University associate professor of political science, calls home rule a Progressive Era reform to strengthen local governments nationwide against “increasingly heavy-handed state governments” that were “sometimes nakedly corrupt.” The concept also shields cities from rural and suburban legislators who don’t understand them, and vice versa, adds Edward Fallone, Marquette associate professor of law. 

Milwaukee won an early victory in 1926, when the state Supreme Court ruled that the city, not the state, can set maximum building heights. Unfortunately for cities, municipal league attorney Claire Silverman wrote in 2016, that was their only significant court win on home rule, as later rulings favored the state. 

Across the country, incursions on home rule came in thematic waves, as states limited local taxing powers; imposed “unfunded mandates” requiring local governments to provide specific services and figure out how to pay for them; and overruled local smoking ordinances and other public health measures, says Christopher Goodman, associate professor of public administration at Northern Illinois University. 

Although both parties preempt home rule in different ways on different topics, a new era started in 2011, after the “red wave” election of 2010 swept Republicans into control of Wisconsin and other states – just in time to gerrymander themselves into lasting dominance, say Goodman, Rocco and Fallone. 

Since the 1980s, Fallone says, Republicans had preached local control as an extension of state’s rights, arguing that most issues should be decided by officials closer to the people than federal bureaucrats and congressional Democrats. Now, Rocco and Fallone say, GOP lawmakers cater more to special interests – blocking minimum wage and sick leave increases opposed by businesses, stopping eviction moratoriums and rent control opposed by landlords, overruling gun control opposed by firearms owners. 

Milwaukee’s conservative police and firefighters’ unions are among those interest groups, Rocco and Fallone say. One of their top priorities was abolishing city residency requirements, which GOP lawmakers did in 2013. The conservative-led Wisconsin Supreme Court upheld the state law in a 2016 decision that weakened the constitution’s home rule provision so much that state statutes now offer cities and villages more protection, Ward and Silverman wrote. 

Fallone – who lost high court races in 2013 and 2020 – blisteringly attacked the 2016 ruling at the time, then found himself facing off against those unions as city Fire and Police Commission chair. After the commission approved a bodycam video release policy opposed by the police union, Republicans added provisions to Act 12 that took away the oversight panel’s policymaking authority and gave seats to police and fire union representatives. Fallone and vice chair Amanda Avalos resigned in protest.  

Act 12 also sets minimum police and fire staffing and spending requirements statewide – with more specific rules for Milwaukee – and orders city police back into Milwaukee Public Schools over School Board objections.  

State Rep. Jessie Rodriguez (R-Oak Creek), an Act 12 cosponsor, confirmed the Milwaukee public safety unions requested all those provisions. She says it was part of negotiations to win majority support for the funding package. 

Rodriguez says those talks also led to prohibiting use of local tax dollars and tax incremental financing districts to fund The Hop. Rail transit has been a longtime target of conservatives led by Assembly Speaker Robin Vos. 

Another Act 12 provision sharply limits topics on which local governments can call advisory referendums. Rodriguez says subjects like abortion or marijuana “weren’t pertinent to local governments.” Political observers have suggested liberal local leaders hoped referendums on hot-button issues would boost turnout in key elections – a tactic GOP lawmakers also use with statewide advisory questions and constitutional amendments. 

Counties statewide also used advisory referendums in the 1980s to seek relief from unfunded mandates for courts and social services. Counties and towns have more limited home rule powers – and fewer options to resist state dictates – than do cities and villages.  

Rodriguez said she was unaware of the Legislature overriding home rule before Act 12 – something the nonpartisan Legislative Fiscal Bureau reported happening more than 100 times between 2011 and 2018. Most other Republican lawmakers declined to comment broadly on home rule principles or did not respond.   

Not all home rule overrides were political. Goodman says Uber found it more cost-effective to lobby 50 state legislatures to overrule local taxicab ordinances – as Wisconsin did in 2015 – than to negotiate with tens of thousands of municipalities. 

An emerging trend in some states is to withhold state aid for local governments that defy home rule limits, and even to threaten local officials with financial or criminal penalties, Goodman says. A 2018 Wisconsin law criminalizes violations of its ban on “labor peace agreements” that let unions organize workers. That came after a federal appeals court overturned Milwaukee County’s labor peace ordinance for human services contractors. 

“It’s hard enough to get people to run for office without turning them into criminals for trying to do their jobs,” says municipal league leader Deschane. “It would be better for all concerned if the Legislature would cut local governments a little slack.” 

An Unhealthy Choice?

DOZENS OF LIVES could have been saved if the Wisconsin Legislature had let Milwaukee’s paid sick leave ordinance take effect, a Syracuse University researcher says. 

In 2008, city voters approved the measure by a wide margin. The ordinance would have required all private-sector employers to give workers at least one hour of paid leave for every 30 hours worked, up to an annual maximum of 72 hours of leave at large businesses and 40 hours at small businesses.  

Advocates said it would protect low-wage workers from being fired for taking time off if they or their family members were ill. 

But by the time the ordinance survived a legal challenge, Republicans had won control of state government and in 2011 then-Gov. Scott Walker signed legislation outlawing local paid leave ordinances. 

Senate President Chris Kapenga (R-Delafield), who co-sponsored the override law as an Assembly member, said by email he favors local control unless an issue “has a broader impact to the state” – an apparent reference to business concerns about a patchwork of local regulations.   

But increasing paid leave drives down death rates, according to a 2022 study led by Syracuse professor Douglas Wolf. The research links paid sick leave to reduced deaths from homicides among both genders, suicides among men and drug overdose deaths among women, all aged 25 to 64. Then the study looked at how much local ordinances could have cut deaths if states didn’t block them. 

Although Milwaukee’s ordinance wasn’t part of that study, Wolf predicted 40 hours of paid leave countywide could have resulted in 18 fewer deaths per year, on average, from 2012 through 2019. The city-only total would be lower, but “it seems safe to conclude that the state’s preemption law is responsible for numerous deaths that might not otherwise have occurred,” Wolf says.