Why do cities innovate in public health? Implications of scale and structure.

• Author: Diller, Paul A.
• Position: Abstract through II. Why Heightened Local Regulation Is Remarkable, p. 1219-1254

Abstract

Big cities have frequently enacted public health regulations--especially with respect to tobacco use and obesity--that go beyond the state and federal regulatory floors. That cities innovate in public health at all is remarkable. They have less to gain financially from more stringent regulation than higher levels of government, which shoulder more of the burden of Medicare and Medicaid. Cities are supposed to fear mobile capital flight; if they regulate, businesses will leave. Moreover, because innovation is costly and likely to be copied by others when successful, a free-rider problem might inhibit local policy innovation generally.

Cities' prolific regulation in the public health sphere in spite of countervailing predictions thus demands an explanation. This Article aims to offer one, focusing on what makes local lawmaking unique from lawmaking at the federal and state levels. This Article argues that cities ' smaller scale, concentrated political preferences, and streamlined lawmaking processes facilitate public health innovation. With respect to structure in particular, cities ' unicameral legislatures and lack of a supermajority requirement allow affirmative regulatory legislation to proceed more expeditiously. Cities thus stand in contrast to the currently dysfunctional federal government, in which vested interest groups can more easily block regulatory legislation they dislike. In highlighting what is different about the local lawmaking process, this Article aims to better inform the debate about the extent of local power, which plays out in doctrinal areas like home rule and preemption.

TABLE OF CONTENTS INTRODUCTION I. THE FACTUAL PREMISE: HEIGHTENED LOCAL REGULATION TO COMBAT TOBACCO USE AND OBESITY A. Local Tobacco Regulation 1. Outdoor Advertising Restrictions 2. Reducing Second-Hand Smoke 3. Restrictions on Retail Practices and Flavoring B. Local Obesity Prevention Strategies 1. Trans Fat Bans 2. Menu Labeling 3. Other Local Regulatory Efforts to Combat Obesity II. WHY HEIGHTENED LOCAL REGULATION IS REMARKABLE A. Public Choice Theory and Economic Incentives B. Numerosity and Free Ridership C. Tiebout-ian Competition and Mobile Capital III. INCOMPLETE, BUT PARTIALLY HELPFUL, EXPLANATIONS FOR LOCAL INNOVATION A. Utilitarian Communitarianism: Its Limits and Insights B. Concentrated Political Preferences IV. THE STRUCTURAL COMPONENT OF LOCAL PUBLIC-HEALTH INNOVATION A. Cities' Streamlined Legislative Structure B. Normative Implications V. HORIZONTAL COMPARISON OF CITY INNOVATION A. Innovation Leaders: New York City, Baltimore, Boston, Philadelphia, and San Francisco B. Innovation Laggards: Jacksonville, Memphis, Phoenix, and San Jose CONCLUSION INTRODUCTION

Obesity and tobacco use are two of the biggest public health problems in the United States, each causing 400,000 premature deaths annually and adding billions of dollars to healthcare and other economic costs. (1) As such, there is a compelling case for government regulation in these areas. While such regulation may be in the "public interest," however elusively defined, conventional public choice theory predicts that the American political system is likely to under-regulate given the political influence of "Big Tobacco" (2) and "The Food Industry." (3) These two interest groups and their allies frequently succeed at blocking regulations that would hurt their profits. (4) Despite the public choice narrative, and irrespective of whatever the "right" level of regulation is from the perspective of public health or economics, one trend is clear: many big cities fight tobacco use and obesity by adopting regulations that are more stringent than those emanating from the state and national political systems. This Article attempts to explain why.

Understanding why cities regulate public health more stringently can help inform a larger debate in local government law scholarship about why cities innovate with respect to public policy. Many scholars praise local lawmaking for its "innovative" power in areas like civil rights, environmental protection, and campaign finance regulation. (5) This line of scholarship generally supports the use of local authority to further "progressive" goals, and protests state and federal interference therewith. (6) The legal-academic commentary supporting local innovation, however, appears "result-based" insofar as it merely defends the outcomes of that process. This Article focuses on what is different about the local government process as a first step in providing a normative defense of local policy outcomes.

Because this Article is most concerned with identifying why local governments are more eager to regulate than higher levels of government, it focuses on tobacco use and obesity because these problems are undoubtedly of national and statewide import. By addressing such issues at all, cities defy an increasingly discredited scholarly account that posits that cities legislate only with respect to the distribution of public goods like parks and schools, and ignore more ideological issues that higher levels of government are better able to address. (7) The local action identified in this Article challenges the notion that there is any inherent difference between "local" subjects best addressed by cities and "nonlocal" subjects best addressed by higher levels of government. (8) While there are some subjects and modes of regulation that more traditionally fall within a city's ambit--like, say, parking and zoning (9)--tobacco use and obesity are undeniably problems that could be, and sometimes are, addressed by state or federal government. (10) In other words, there is no obvious or natural reason why cities should seek to reduce obesity and tobacco use more than the state or federal governments.

National and state officials have frequently copied local action in the realm of public health after cities have regulated first. Some scholars have discussed this process of vertical policy migration in more detail, arguing that policy preferences of officials (and their constituents) at higher levels of government are not stable, and can be reshaped by the actions of lower levels of government. (11) This Article does not revisit the phenomenon of vertical policy migration in depth, but rather focuses on the crucial first step: cities enacting new public health policies that exceed the pre-existing regulatory floor.

To make this project more manageable, this Article generally focuses on policies enacted by the twenty-five most populous cities, (12) while considering less systematically the work of counties and less populous cities. (13) The focus on big cities follows an intuition that they are often, but not always, enacting the most innovative public health regulations. Even if this intuition is incorrect, homing in on large cities can still tell us much about what is different about local government generally, since some of the key characteristics of structure--and, to some degree, scale--common to big cities are shared by almost all cities and counties.

This Article proceeds as follows. Part I lays out the factual premise, demonstrating that big cities have regulated beyond the state and national floors to combat tobacco use and obesity. It highlights a handful of major regulations in each context, surveys each regulation's genesis, and notes major ensuing policy migration. Part II then explains why cities' innovative public health regulation is remarkable. It examines prior scholarly accounts that predict city inaction and analyzes why these narratives are wrong in the public health context. Part III then grapples with some prominent scholarly accounts, like communitarianism, that might predict innovation. I argue that these accounts are incomplete, but still helpful to some degree. In particular, the smaller scale of local government and concentrated political preferences may facilitate local innovation, although not necessarily in the ways other scholars have identified.

Part IV then offers an additional, heretofore undervalued structural explanation for local innovation, arguing that big cities are uniquely capable of innovating in the realm of public health because their method of lawmaking is significantly more streamlined than that of higher levels of government. This streamlined system, combined with the low salience and smaller scale of local elections discussed in Part III, allows relatively poorly funded interest groups to promote legislation more effectively than they do at the state and national levels. Part IV focuses only on local governments' political actors, assuming that any administrative action reflects elected officials' will. Finally, Part V takes a closer look at public health innovation across the most populous cities in an attempt to discern which aspects of local structure affect a city's proclivity to innovate.

1. THE FACTUAL PREMISE: HEIGHTENED LOCAL REGULATION TO COMBAT TOBACCO USE AND OBESITY

   This Part establishes the factual premise that cities have enacted heightened, innovative regulations with respect to public health, focusing in depth on a handful of regulations in the tobacco and obesity contexts. The surveyed regulations are notable for exceeding the then-existent federal and state regulatory floors. In doing so, each regulation was likely to arouse significant opposition from the regulated industries. In preparation for the horizontal comparisons to be made in Part V, this Part notes the degree to which highlighted policies diffused to other cities ranking in the top twenty-five in population around the time of the regulation's emergence. Because court challenges and attempts to preempt at higher levels can greatly affect a regulation's potential for diffusion, this Part discusses such developments where relevant.

   1. Local Tobacco Regulation

      Cities' heightened regulation of tobacco use has coincided with increased public awareness of the risks of tobacco use and...