Cross posted from Pruning Shears.

Ohioans have experienced a number of different frustrations in trying to get their government to be responsive to their concerns about fracking. The biggest one may be the state’s usurping of home rule of home rule on the issue. Ohio’s Constitution had home rule – basically, the right of cities and towns to self-government – enshrined in it back in 1912, but in 2004 the state passed a law stripping localities of the right to legislate on the issue.

On the face of it, that wouldn’t seem to be something that would pass judicial scrutiny. It would seem to be problematic to go to all the trouble of amending the Constitution to spell something out, then have the statehouse come back later on and say “yeah, not for that.”

On the other hand, it’s all just words on a page without anyone to respect it, right? The US Constitution says Congress shall pass no law regarding the establishment of a religion, but the only thing preventing Congress from doing just that is its sense of forbearance and its respect for tradition. It isn’t as though representatives would be struck dead by bolts of lightning from Avenging Lady Justice if they did so.

Similarly, nothing requires the Supreme Court to overturn such a law. Certainly the current court is no great respecter of precedent; more often it seems to start with its preferred political outcome and work the jurisprudence back from there (corporations are people! money is speech!)

As long as legislators are brazen enough to pass whatever they want and defy the court to tell them no (and here in Ohio our leaders won’t just dare the court to overturn them, they will actually ignore court decisions reversing them), everything in the whole wide world is grey area. Just imagine how muddy it gets on an issue like municipal home rule, where the state actually admits (PDF) “situations are open to court interpretation on a case-by-case basis.”

The only way for a town to figure out if it really has home rule, then, is to challenge the state and assert the right to self-government. This has recently been happening in the form of citizen-led initiatives, and they have a very interesting characteristic: more of an outsider-versus-establishment dynamic than a liberal-versus-conservative one. For the most part, Republicans are enthusiastically pro-fracking and Democrats are acquiescent. Columbus is wired to serve the oil and gas industry, and the next big challenge to it from the capitol will be the first.

So efforts like those in Mansfield and Broadview Heights are happening with essentially zero political support. If you want to see honest to God grassroots political activism, this is a great example. For an even more dramatic example, look at the communities that have not yet secured home rule. In Randolph Township (Portage County), two activists worked to get a vote for limited home rule on the ballot and they are doing their best to whip up support for the measure. One of them, Newt Engle, spoke at a public meeting last week, and here is his explanation of how it came about:

Then listen to how he describes the pushback they got from law directors, commissioners, and so on:

The political establishment is completely aligned against these people, and that makes their efforts a tall order. In addition, home rule has certain requirements (here is a nice primer (PDF)), which opponents are using to raise the specter of big, scary taxes. That talking point is something between wildly overblown and flatly untrue1, but getting the word out is difficult – especially without a political base of party support to stand on.

Without that base of support, activists are left to raise awareness on their own. Their efforts have generated a decent amount of local media coverage, which obviously helps to spread the word, but the industry has the resources to flood the airwaves with ads. There are lots of commercials about the wonderfulness of natural gas on both TV and radio. The industry has that filed pretty much to itself, and it has made extensive use of it.

Considering all those disadvantages, there may well be more failures than successes on these initiatives. Supporters would probably be wise to set their expectations to that effect. It would be easy for a few defeats to create an outsized sense of discouragement. If activists see themselves as settled in for a ongoing effort though, it could lead to some interesting developments. At a minimum, a long term effort with zero party support would create an increasing demand for something to provide that political backing. And politics, as nature, abhors a vacuum.


1. Engle looked into the additional cost and posted an extended comment on an anti-home rule site. The comment was deleted, but Engle saved a copy of it before it went away. This excerpt address the cost of police protection, which one trustee put at $376,000 (really!)

Now let’s look at the issue of police protection. Yes, the trustees have a quote of nearly $376,000 for the Sheriff to provide 48 hours of police protection a week for a year. Truth is we could probably get the cost up to over a million dollars if we asked for 24-7 coverage. But let’s be real. The ORC (Ohio Revised Code) does not specify how many hours the police must be in the township if we have limited home rule. The “fact” is the ORC only requires the township to provide police protection on a regular basis. Furthermore the ORC stipulates several different ways this requirement can be satisfied. When I went and talked to Sheriff Doak, he indicated he was only asked to provide a quote. He was not asked about any other options or if he would be willing to keep patrolling the township just like he is now. But let me stop here and let you know that the Sheriff’s office is so poorly funded that Randolph Township is very rarely “patrolled” by the Sheriff’s department at all. Most of the time the deputies only come to our township to take a report. Therefore this idea that limited home rule would require the township to pay for 48 hours of police protection is simply not true. Our Sheriff and his deputies are currently doing a fine job in our township. Why change a thing? With a little negotiating the township will be able to allow the Sheriff to keep providing the same police protection we are enjoying now at little to no cost.