Harvard Law Review
Copyright (c) 2002 The Harvard Law Review Association
Harvard Law Review
115 Harv. L. Rev. 1763
LENGTH: 33848 words
ARTICLE: BEYOND REGIONAL GOVERNMENT
* Louis D. Brandeis Professor of Law, Harvard Law School. I developed many of
the ideas advanced in this article in conversation with my colleague David
Barron; I am therefore very grateful to him not only for his comments on this
article but also for his help in thinking about these issues. I would also like
to thank Rosa Comella, Sabrina Feve, and David Kennedy for their insightful
comments and Jeff Pojanowski and Michelle Anderson for their excellent
research. This Article is dedicated to the memory of Gary Bellow.
"Almost no one favors metropolitan area government," Anthony Downs has observed,
"except a few political scientists and intellectuals. ... A report written in
1896 by the Metropolitan District Commission, an organization created by the
Massachusetts state legislature to consider the establishment of a regional
government for Boston and its surrounding suburbs, provided an early
articulation of this idea. ... The Metropolitan District Commission's proposal
for Boston never got out of the state legislature, but its equation of two-tier
regional government with a functional division of power has continued to the
present day. ... The current split between prosperous and declining suburbs
renders uncertain the kind of alliance among political subdivisions that would
control a regional legislature in most American metropolitan areas. ... -
Given the differences among American metropolitan areas, the political effort
necessary to convince a state legislature to establish a regional institution
is likely to generate different starting points across the country. ... What
are we to make of this kind of regional structure? Clearly, MPOs are not
organized according to the one-person, one-vote rule. ... The reason to shift
transportation planning responsibilities from MPOs to a regional legislature
would be to increase regional power over these decisions - that is, to
decentralize power. ...
"Almost no one favors metropolitan area government," Anthony Downs has observed,
"except a few political scientists and intellectuals."
n1 As a result, he said,
"proposals to replace suburban governments completely are ... doomed."
n2 Downs came to this conclusion after describing the significant economic,
environmental, and social costs imposed by the current fragmentation of
American metropolitan areas into dozens, sometimes hundreds, of independent
municipalities. Although this fragmentation has its defenders, I shall assume
in this Article that Downs is right on both of his points: that the current
fragmented system of governance is unacceptable and that a regional government
is not a viable alternative.
n3 The issue that this Article addresses is the relationship between these two
assumptions: how can
[*1765] America correct the inequalities and inefficiencies that the current form of
governance produces if regional government is not an option?
Too often, the only alternative considered possible for American metropolitan
areas, once regional government is taken off the table, is the status quo.
n4 The problem with this way of framing the issue is that, like a centralized
regional government, the status quo is undesirable. Centralization would
transfer local governmental power from entities in which popular participation
in government decisionmaking is possible to one that would be more like a state
(indeed, more like the federal government in 1790) than a city.
n5 It is therefore not surprising that the African-Americans who now exercise
governmental power in some of the nation's central cities are as opposed to
regional government as are white residents of prosperous suburbs.
n6 Yet the status quo has created an urban America characterized by unequally
funded schools, interminable traffic jams, inadequate affordable housing,
economic development far from potential employees, endless suburban sprawl, and
an increasing fear of people who live in neighborhoods different from one's
own. The inadequacy of the current system is so apparent that even the
staunchest defenders of local power agree that at least some urban problems
require regional solutions. A number of regional initiatives have therefore
been adopted in the United States, including voluntary agreements between
neighboring localities, regional public authorities, and attempts to split the
difference between centralization and decentralization by adopting a
"two-tier" form of government, with some functions allocated to a regional body and the
rest left to local discretion. As I describe below, however, none of these
intermediate solutions has adequately addressed the fundamental reasons why
American metropolitan areas have been fractured into a multiplicity of
jurisdictions: schools, crime, housing, jobs, and taxes. As a result, the
inability to organize regional governments in America
[*1766] has left these kinds of issues to local decisionmaking, with state control
being the only way to restrain local selfishness.
It is time to open up more options. The purpose of this Article is to suggest
what some of them might be. In Part I, I present an overview of the history and
current status of regional solutions to America's urban problems. In Part II, I
sketch a new kind of metropolitan organization, one that is based on ideas
derived from, while modifying, the structure of the European Union. State
legislatures, I suggest, should create a regional institution consisting of
democratically elected representatives of the region's cities, one that would
put cities in control of their collective agenda rather than establish a
centralized government. To build support for this new institution's regional
agenda, the state legislature should give it authority to deal with an issue
that undeniably involves regional concerns (such as transportation). But it
should also give the regional institution the power to expand its agenda over
time, including the power to deal directly with the divisive issue of
intraregional inequality. Finally, to foster a regional consciousness that can
encourage a broadening of the regional agenda, I propose the establishment of a
regional citizenship that, like the citizenship of the European Union, can
supplement, rather than replace, local citizenship. Part III is a conclusion.
It addresses the issue that dominates contemporary thinking about regional
governance: is any alternative to the status quo politically viable?
I. The Quest for Regional Government
A. Annexations, Consolidations, and City-County Mergers
The division of metropolitan areas between a central city and its suburbs is
not a new phenomenon. In 1790, one-third of Philadelphia's metropolitan
residents lived outside the city's boundaries, and mid-nineteenth-century
Brooklyn was referred to as
"New York's bedroom."
n7 The response to this fragmentation in the nineteenth century, however, was to
enlarge the central city. All the major cities of the period - Boston, New
York, Philadelphia, Chicago, Pittsburgh, St. Louis, Cleveland, Denver - grew by
incorporating their suburbs.
[*1767] And the growth was substantial: these cities became four to sixty-five times
n9 Sometimes the areas brought into the central city were unincorporated, but
major cities were absorbed as well. In 1854, Philadelphia annexed the ninth,
eleventh, twelfth, twentieth, and twenty-eighth largest cities in the United
States, and Brooklyn was the nation's fourth largest city when it was
consolidated into New York City in 1898.
Support for this expansion crossed city lines. Some suburban residents agreed
with their city counterparts that
"bigger is better," and others wanted central city services that they otherwise could not afford.
n11 Land speculators, real estate promoters, and businessmen defended the growth
of central cities in the name of
n12 As a result, a number of nineteenth-century annexations (such as those by
Boston and Cleveland in the 1870s and Chicago in the 1880s) took place after an
affirmative vote of both suburban and city residents.
Predominantly, however, the growth of American cities in the nineteenth century
took place either over the objection of suburban residents or without asking
their permission. Then, as now, many suburban residents vehemently opposed
annexation because they wanted to defend local control, avoid taxes, or gain
access to better city services; then, as now, suburban residents sought to
isolate themselves from the kind of people central cities attracted.
n14 Annexations and consolidations were nevertheless initiated by the state
legislature, by the central city acting alone, or by a voting scheme that
counted the ballots of the annexing city and the area to be annexed together,
thereby denying the inhabitants of the annexed territory the ability to veto
n15 The most common method used was state legislation: state legislatures
regularly enlarged cities over the objection of those being incorporated
[*1768] into them.
n16 But voting schemes worked just as well. Shortly after the turn of the century,
the city of Pittsburgh was able to annex the neighboring city of Allegheny
because Pittsburgh residents' votes in favor of the annexation overwhelmed
Allegheny residents' votes against it.
n17 The opposition to the annexation remained so intense, however, that opponents
appealed the result all the way to the United States Supreme Court.
n18 Relying on what it called
"settled doctrines" of local government law, the Court unanimously held that there was no
constitutional right protecting suburban residents from annexation.
n19 If the state considered city growth a priority, the Court reasoned, a minority
of people who live on the fringe of this growth is not entitled to stand in its
This method of city building did not end in the nineteenth century. The major
American cities that have flourished in the twentieth and twenty-first
centuries - Atlanta, Jacksonville, Oklahoma City, Houston, Dallas, San Antonio,
Memphis, Nashville, Albuquerque, Phoenix, Los Angeles, San Diego, San Jose -
have all grown in a similar way.
n21 They too have annexed neighboring territory, sometimes with the consent of
those being absorbed (Los Angeles, Nashville, Jacksonville
n22), sometimes with the consent only of the property owners in the annexed areas
n23), and sometimes without asking anyone's permission (Houston, Oklahoma City,
n24). Once again, large
[*1769] cities have been created by the state legislature, by the decision of the
annexing city acting alone, or by a vote of both the annexing and annexed
cities combined - as well as through a process that sought the separate consent
of the residents of the area to be annexed.
n25 And, once again, support for this expansion, in the central city and the
suburbs alike, has derived from civic pride, a need for city services, and a
desire for governmental efficiency, while opposition has stemmed from concerns
about local control, taxes, the quality of city services, and the kinds of
people the city attracted.
In the last half of the twentieth century, this expansion predominantly
occurred in the South and West, where it was stimulated by a combination of
permissive annexation laws, strict restrictions on the incorporation of new
cities on the urban fringe, and a less divisive mix of support and opposition
to central city growth. Elsewhere, annexation
[*1770] of surrounding areas by large central cities has come to a halt.
n27 The impact of this freezing of city boundaries has been dramatic. If the
earlier pattern of annexation had continued outside the South and West, as
Kenneth Jackson points out,
"Boston would probably encompass the entire area circumscribed by Route 128, New
York City would reach well into Westchester County and at least to the Suffolk
County line on Long Island, and Chicago would stretch a quarter of the distance
n28 No doubt, to most people, a Boston, New York, or Chicago of this size seems
inconceivable. But this is precisely the kind of expansion that has occurred in
the South and West. There would be only one city in the country with more than
a million inhabitants (a New York City composed solely of Manhattan) if none of
the nineteenth-and twentieth-century annexations, consolidations, and
city-county mergers had taken place. Every large city in America, in other
words, is itself a form of regional government.
Still, this method of city building has never prevented metropolitan
fragmentation. Suburbanization has regularly outpaced the ability of the
central cities to expand. In the nineteenth century, the newly enlarged cities
only briefly circumscribed the metropolitan areas as a whole, and, with a few
exceptions, the major central cities of the South and West that have most
aggressively engaged in annexation since World War II still encompass less than
half of their metropolitan populations.
n30 Even David Rusk, a longstanding supporter of regional government, does not
imagine that such a government would include more than sixty percent of the
n31 One reason for
[*1771] cities' inability to extend their borders to the boundaries of the region as a
whole stems from state laws that encourage the virtually limitless geographic
expansion of American metropolitan areas even if their populations have
remained relatively stable. These laws, for example, facilitate the
incorporation of new cities on the urban fringe, organize local taxation in a
way that enables exclusive suburbs to offer better services to their residents
than those offered by neighboring jurisdictions, and (along with a host of
federal programs) provide financial support for suburbanization.
n32 These legal rules, along with many others, have led to the creation of
metropolitan areas that have not only crossed state lines but have also grown
larger than many states.
n33 The concept of a regional government has thus become the antithesis of, rather
than an example of, local government.
But the problem has not simply been a matter of size. Another impediment to
annexation has been the fact that the same laws that have encouraged geographic
expansion have helped intensify opposition to regional government, an
opposition that is now as apparent in the South and West as it has long been
n34 These laws have fostered - and gained support from - a privatized conception
of local autonomy, one that has fueled an increasing social distance, even
antagonism, separating one suburb from another as well as from the central
n35 This divisiveness does not derive from human nature. In the nineteenth
century, central cities supported the annexation of neighboring territory
despite the fact - sometimes because of the fact - that social conditions and
services there were worse than those in the central city.
n36 Now, by contrast, the sharp differences between the schools, taxes, housing
quality, and levels of crime in neighboring jurisdictions - differences that
regularly track lines of race and class - lead people to embrace suburban
autonomy as a way to provide for themselves a better standard of living and
"undesirable" kinds of people.
n37 The individually incorporated enclaves that are surrounded by American central
cities - places like Beverly Hills in Los Angeles, Piedmont in Oakland,
Highland Park in Detroit, and Brookline in Boston - are simply the most glaring
examples of this attachment to separatism.
n38 As I have already suggested, this attitude is not limited to the suburbs.
"Many black and brown Americans fear that regional governmental arrangements
will erode their emerging political base in the core cities, returning
political control to the whites who have fled to the suburbs."
n39 As a result, the residents of economically
[*1773] depressed central cities are often as opposed to their cities being
consolidated with the suburbs as the suburbs are to being consolidated with
them. Indeed, the annexations in the South and West since the 1950s demonstrate
why the fortification of city boundaries is so widely considered an important
objective: these annexations were facilitated by the relative lack of class,
racial, or ethnic distinctions between city residents and those incorporated
B. The Two-Tier Model
Long before the dramatic postwar expansion of American metropolitan areas,
reformers who favored regional approaches to urban problems recognized that a
single government for the entire region was not the solution to metropolitan
fragmentation. They therefore sought to create a
"two-tier" system of government by dividing public functions into those that could best
be performed on a regional level and those that should remain at a local level.
n41 A report written in 1896 by the Metropolitan District Commission, an
organization created by the Massachusetts state legislature to consider the
establishment of a regional government for Boston and its surrounding suburbs,
provided an early articulation of this idea.
n42 Strongly rejecting the option of annexation, the Commission offered in its
place a design modeled on the notion of federalism: power, it suggested, can be
allocated to two levels of government simultaneously. The Commission based its
proposal on the assumptions that the rationale for regionalism was the
promotion of the area's economy and that the justification for regional
performance of any particular government function lay in its ability to
generate greater efficiency.
n43 From this perspective, it found that the essential metropolitanwide functions
were sewerage, parks, and water supply (each of which was then the
responsibility of its own metropolitan organization), with metropolitan
transportation a likely future addition.
n44 The Commission argued that these regional functions could be performed by a
new county covering greater Boston and that
[*1774] local independence of the various municipalities would be assured" because any additions to the list would require proof that the matter was of
general interest and that local governments could not adequately undertake it.
The Metropolitan District Commission's proposal for Boston never got out of the
n46 but its equation of two-tier regional government with a functional division of
power has continued to the present day. So has its reliance on the notion that
a regionwide consensus can determine which functions should be performed at
each level of government. The Commission's version of this consensus derived
from its focus on the economy; that is what enabled it to describe the region
"common interests and a fairly homogeneous people."
n47 The same focus also inspired efforts in the 1920s to establish two-tier
regional governments in localities ranging from Alameda County, California, to
Pittsburgh, Cleveland, and St. Louis.
n48 By framing the argument in terms of economy and efficiency, proponents were
able to win considerable support in these metropolitan areas from residents
both of the elite suburbs and of the central city. In fact, businessmen who
lived in the suburbs and worked in the central city often led the fight for
n49 To be sure, this
"good government" coalition was opposed by those - such as residents of small towns and local
officials - who feared that the drive for economy and efficiency would
ultimately produce a centralized regional government. Proponents regularly
downplayed this interpretation of their idea, but opponents highlighted it.
n50 The most decisive obstacles that the proponents faced, however, were voting
rules that prevented the adoption of their proposal even when a majority of the
region favored it. So great was the fear of centralization that the voting
rules were often designed to ensure the proposal's defeat: in Pittsburgh, for
example, a two-thirds vote in each of the municipalities was required for
[*1775] Efforts to establish two-tier governments were revived in the late 1950s in
St. Louis and Cleveland, with both proposals again going down in defeat.
n52 By this time, however, the comforting notion that there existed a consensus
that could allocate functions to two levels of government had largely
disappeared - a development that would be no surprise to any student of
federalism. The problem was not just that the idea of
"economy and efficiency" could be broadly interpreted to include virtually the whole range of local
government activities, thereby making the two-tier structure simply a stepping
stone toward centralization. This difficulty had long been recognized by
sophisticated two-tier proponents, such as Thomas Reed, when they considered
contentious issues such as the allocation of the power to raise taxes.
n53 Equally troubling was the growing realization that other values needed to be
incorporated into the rationale for regionalism.
This expanded vision was most carefully articulated in a series of reports
issued in the 1960s and 1970s by the United States Advisory Commission on
Intergovernmental Relations (ACIR).
n54 The ACIR elaborately analyzed local government functions in terms of four
different factors - economic efficiency, equity, political accountability, and
administrative effectiveness - and explored the complexity involved in applying
these conflicting criteria to any specific local function.
n55 The ACIR insisted that an allocation of power consistent with all of these
values was possible. Yet its confidence failed to mask a fundamental dilemma:
every traditional city function - police, education, housing, transportation,
parks, sanitation - is simultaneously a matter of local and of regional
concern. Decisions on these issues regularly affect not only the people who
live within city boundaries, but also those who live outside of them. As a
result, the very items that are most important to local citizens can be
considered proper subjects for regional governmental action. The ACIR thought
that this difficulty
[*1776] could be overcome through expertise. It called on the states to undertake
case-by-case analyses that would strike the right balance between regional and
local power, urging them to recognize that a solution would often require
subdividing individual functions and apportioning their component parts to the
two levels of government.
n56 Other contemporary reports dealt with this stumbling block rhetorically: they
simply appealed to the value of dividing power without any suggestion
whatsoever about how it should be done.
Despite these difficulties, the two-tier solution is embraced by virtually
every major contemporary proponent of regional government reform.
n58 Although some of these proponents continue to invoke arguments of efficiency
n59 most of them focus instead on promoting the integration of a region's housing,
designing a more equitable allocation of tax revenues, and establishing growth
boundaries to curb suburban sprawl. In other words, they have made the
achievement of regional equity, rather than efficiency, the essential regional
n60 David Rusk, who has offered the most detailed contemporary proposal for a
two-tier regional government, insists:
"While it may be a beneficial result, greater efficiency is no part of [my] ...
n61 This shift in emphasis, far from resolving the ambiguity that plagues two-tier
proposals, has made it even harder to imagine how specific tasks would be
allocated to two different levels of
[*1777] government. Unlike arguments based on economy and efficiency, an emphasis on
equity overtly threatens the very advantages that many proponents of local
autonomy have fought so hard to retain. After all, residential segregation,
unequal tax revenues, and unlimited potential for growth have benefited some
suburban residents at the expense of their poorer neighbors. Even residents of
the poor suburbs and central cities - the beneficiaries of the proposed
exercise of regional power - are likely to realize that a regional government
empowered to achieve equity could limit the aspects of local self-determination
they value most. Current two-tier advocates do little to assuage these
concerns. Although they suggest that local autonomy would remain even after
their regional goals have been accomplished, they have not indicated what
functions of any importance local governments would continue to provide. They
have concentrated solely on the achievement of their regional goals.
These contemporary equity-based proposals are modeled on the regional
government organizations now in place in Portland, Oregon, and Minneapolis-St.
Paul. Residents of the Portland metropolitan area elect a regional body, called
"Metro," that is empowered to deal with regional planning issues, such as
transportation, and to make land-use decisions designed to curb urban sprawl by
concentrating development within an urban growth boundary established under
n62 The Twin Cities Metropolitan Council is a regional entity with members
appointed by the governor; it too has planning authority over issues such as
transit, water quality, waste control, airports, and land use. Regional revenue
sharing, however, is the Minneapolis-St. Paul area's most distinctive
n63 Although these innovative regional initiatives have accomplished a good deal,
neither regional body has the full range of power that current two-tier
advocates think necessary. It is not just that these advocates want regional
power to combine features from both regions: Portland has no revenue sharing
and the Twin Cities Metropolitan Council is not popularly elected. Even
[*1778] Minneapolis-St. Paul's revenue-sharing system has proved insufficient to
reverse the area's widening income disparity, and, although the disparities of
wealth among the different cities within the Portland area are not as serious
as those existing elsewhere in the country, Metro's considerable land-use
powers have also failed to prevent an increase in income polarization.
n64 Current advocates thus add to their call for expanded revenue-sharing demands
for strict curbs on urban sprawl, an elected regional government, and an
important additional feature: the power to integrate the area's housing.
n65 Even the most creative regional bodies in the country, in short, need more
It is unlikely that such an increase in regional authority would create a
stable balance between regional and municipal governments. From 1954 to 1997,
the directly elected Toronto Metropolitan Council had the kind of regional
power that two-tier advocates imagine: authority over public housing,
education, transportation, police, taxation, planning, and parks (and that was
not all). Moreover, not only were some matters left in the hands of local
officials but the Metropolitan Council itself regularly made its decisions in a
way that was influenced by (some thought too influenced by) the municipal
governments. Although this is the kind of division of authority that two-tier
advocates hope for, in Ontario it was attacked as inefficient rather than a
happy compromise. The exercise of two different levels of power is costly,
critics charged, and it frustrates the achievement of metropolitan objectives.
These efficiency concerns ultimately led to the abolition of Toronto's two-tier
government. After more than forty years in operation, the Metropolitan Council
and its constituent municipalities were amalgamated in 1997 into one
government, a new City of Toronto.
[*1779] The opposite solution to the problem of duplication and inefficiency occurred
in London. From 1899 to 1986, the London County Council (and its successor, the
Greater London Council) had authority over most of the major local government
functions in the London area. Particularly after the Greater London Council was
created to expand the metropolitan jurisdiction in 1965, however, the local
boroughs fought for, and gained, an increasing share of power. In 1986, the
Thatcher government, having identified the metropolitan government rather than
the local governments as the locus of waste and inefficiency, abolished the
Greater London Council, citing the need to end inter-tier conflict. (A new
metropolitan government for London assumed power in 2000, but it has much less
authority than the London County Council once wielded.)
Miami-Dade County, the oldest two-Otier government in the United States,
illustrates a third possible fate of two-tier government: a perpetual struggle
for power. It has abolished neither its regional nor its city governments,
although there have been proposals to do so. In the words of a former County
Manager, the history of Miami's two-tier government has been characterized by
"the political opposition that municipal officials have placed in the path of
every area-wide endeavor attempted."
As later sections of this Article make clear, I share the goals espoused by
advocates for regional equity. Indeed, it is easy to expand on them: neither
Portland's Metro nor the Twin Cities Metropolitan Council has the power to deal
with such important contributors to metropolitan inequality as crime and
education. The conventional
[*1780] two-tier model, however, is not a plausible way of achieving our common
objectives. The demand for regional equity and the protection of local autonomy
conflict with each other, and it is disingenuous to pretend otherwise. This
conflict cannot be resolved by a functional division of power because the
fundamental issue, as Robert Wood argued forty years ago, is political, not
n70 The effort to create a functional division of power is based on the idea that
there is an uncontroversial way to divide governmental functions between those
that serve a parochial conception of self-interest and those that serve the
greater good. Such a neutral basis for the allocation of power is not simply
illusory. The search for it has frustrated the effort to achieve regional
goals. By holding out hope that it is possible to allow localities to advance a
privatized notion of self-interest without imposing negative consequences on
outsiders, the two-tier model strengthens a narrow conception of self-interest
at the expense of regionalism. The power of this conception undermines the
prospects for any kind of regional proposal. It is not surprising that none of
the five two-tier governments described in this section was created by a voting
system that required the acquiescence of each affected municipality
individually. (The Twin Cities Metropolitan Council and the Toronto
Metropolitan Council were established by the state and provincial legislatures.
n71 The London County Council was organized by Parliament.
n72 The Miami-Dade County government and Portland's Metro were authorized by
regionwide votes - in both cases over the objection of at least one constituent
part of the new metropolitan entity.
n73) It is also not surprising that the desire for local autonomy has continued to
spur suburbanization in all five metropolitan areas. None of these so-called
"regional" governments actually has jurisdiction over the entire metropolitan region.
n74 We need to admit that it is not possible to protect a privatized
[*1781] conception of local autonomy within a regional structure. The reluctance to
make this admission is now driven by the fear that it could only lead to the
establishment of a centralized regional government. It should provoke instead
institutional imagination - new designs for regional government organization.
Below, I offer an example of such a design, one based on a fundamental
reconceptualization of the two-tier model.
C. The Reliance on Ad Hoc Solutions
Although there are very few regional governments in the United States, there
are thousands of other kinds of regional institutions - organized as special
districts and public authorities - and thousands of voluntary agreements among
local governments. Special districts and public authorities (collectively
"special purpose governments") are independent public agencies established under state law to deal with a
specific problem such as fire protection, water supply, waste disposal, or
transportation; occasionally, they are responsible for a limited combination of
problems. Voluntary agreements are contracts entered into by two or more local
governments, and they provide an alternative mechanism to address the same
kinds of issues. Despite the fact that these two types of institutions are
quite different in form, they share important features: they handle similar
matters, and they are justified on the grounds of economic efficiency rather
than equity. Thus, neither threatens the basic allocation of power between rich
and poor cities within the metropolitan region.
Special purpose governments are often organized to address matters other than
metropolitan concerns; when so organized, they simply perform an individual
city's functions. In the last fifty years, however, special purpose governments
have become the most common mechanism in the United States for dealing with
regional problems, in part because the federal government has encouraged states
to organize them.
n75 A more important reason for their prevalence, however, is that
[*1782] state law has made them the most attractive device for confronting problems
that cross city lines.
n76 Special purpose governments can be organized easily. Many of them are
established by the state legislature, with members appointed by the governor.
Even when they are created by popular vote, the voting rules normally require
only a single districtwide majority, rather than the consent of each individual
municipality (as is often required for the creation of a regional government);
frequently, the vote is limited to property owners.
n77 Special purpose governments can also be empowered to operate within whatever
definition of the metropolitan area the authorizing act specifies. Their
jurisdiction can therefore extend to the entire area affected by the problem to
be addressed, even if the problem crosses state lines.
n78 Moreover, once in operation, special purpose governments enjoy considerable
independence from state and city governments. For example, not only do they
have their own revenue-raising powers but they are also freed from the limits
state law imposes on cities' power to tax and issue debt.
n79 Finally, because they are created to deal largely with technical issues (such
as water supply or waste disposal) rather than equity concerns (such as crime
or zoning), special purpose governments do not stir the political opposition
that is commonly waged against proposals for regional government. On the
contrary, those who oppose regional government often favor special purpose
n80 Even when they operate in areas that plainly raise issues of regional equity
(such as transportation), their financial autonomy and their association with
efficiency and technical expertise enable them to exercise their power in a way
that makes them more impervious to political influence than city governments.
Armed with these advantages, special purpose governments have often functioned
effectively, and the number being established in the
[*1783] United States is increasing rapidly.
n81 But urban scholars have long argued against reliance on this form of
metropolitan governance, and in the 1960s and 1970s the ACIR urged its
abolition, consolidation, or subordination to city and state governments.
n82 The problems that critics have found with special purpose governments are
closely connected to their advantages. Their limited purpose has led to the
creation of dozens - sometimes hundreds - of independent entities within a
single metropolitan region. This fragmentation along functional lines, when
combined with the multiplicity of city governments, has made regional
coordination and planning virtually impossible.
n83 The fact that each special purpose government operates within its own
geographical area - an area that is often functionally inappropriate because
the region's growth regularly outpaces the government's jurisdictional
boundaries - only exacerbates this problem.
Another concern about special purpose governments highlights the dark side of
their independence and reliance on expertise. Their relative imperviousness to
political control increases the power of entities unaccountable to metropolitan
residents at the expense of democratically elected governments. This is
particularly true when special purpose governments are controlled by appointed
boards or are elected only by property owners. But even when the governing
[*1784] elected by all eligible voters, the multiplicity of entities and their
technical nature generate an unusual amount of voter confusion and apathy.
n84 Moreover, the very existence of these specialized agencies distorts the public
agenda. One aspect of this distortion is the effect on the public budget.
Despite their claim to efficiency, these governmental forms are a more
expensive way to perform a given public function than is city government.
n85 Even more significant is their effect on governmental priorities: special
purpose governments - in the metropolitan areas that have many of these
entities - routinely get more resources than city governments get to perform
the same functions. In regions filled with special purpose governments, in
other words, more money is spent on technical matters and less is spent on
The most important objection to special purpose governments, however, relates
to their impact on regional governance itself: special districts and public
authorities strengthen adherence to the current, fractured system of local
n87 Once the matters that obviously require regional attention are taken care of,
it is costless for the municipalities who benefit from current zoning and
financing rules to insist on maintaining their independence. The situation
might well be different if issues of efficiency and equity were linked. An
overall effort to address regional issues might generate more support, in other
words, if waste disposal, water supply, and the airport could be dealt with
only if zoning, school inequality, and crime control were included in the
package of issues to be addressed.
Voluntary agreements have been much less controversial than special districts
and public authorities.
n88 A contract among neighboring cities - or between cities and the county in
which they are located - offers many of the advantages of special purpose
governments in a form that the ACIR, for example, has found much more benign.
Once state law authorizes cities to enter into such agreements, they are easy
[*1785] to generate. City officials can negotiate such agreements whenever they
identify a common problem; no referendum is necessary to put them into effect.
Moreover, voluntary agreements allow problems to be addressed with considerable
geographic flexibility. The contracting parties - and thus the area covered -
can differ from agreement to agreement, depending on the problem being
addressed. For each common concern, the relevant cities can organize an
approach that takes advantage of economies of scale, prevents unnecessary
duplication or conflict, and, particularly if the contract is long-term,
profits from the use of experts.
Because the voluntariness of these agreements stems from the familiar notion of
freedom of contract - no one will enter into an agreement unless it is to his
or her advantage to do so - interlocal contracts tend to deal with technical
matters rather than issues of regional equity.
"The potential of intergovernmental cooperation," as the ACIR notes,
"is limited principally to the solution of relatively minor and fairly
n89 This association with technical concerns has distinct advantages: as in the
case of special purpose governments, it helps immunize these agreements from
"This approach has been ... popular," to quote the ACIR again,
"because it is pragmatic, piecemeal, permissive, and has a minimal disruptive
impact on the structure of local governments."
Despite this innocuous picture (who can object to voluntary agreements?),
interlocal contracts present the same problems as special districts and public
authorities. They too focus on issues one by one, and the resulting
multiplicity of agreements therefore complicates the coordination and planning
of local government activities.
n91 They too weaken democratic control of local governmental functions: long-term
contracts extend beyond the terms of the government officials who make them and
thus are impervious to change by their successors. Indeed, given the inequality
of resources - and consequently of bargaining power - among a region's cities,
voluntary contracts can perpetuate arrangements that advance the interests of
some of the region's residents at the expense of others. As with special
purpose governments, however, the most significant problem that voluntary
agreements pose lies in their contribution to the perpetuation of the current,
fragmented system of local government authority.
[*1786] The classic illustration of this phenomenon is the so-called Lakewood Plan in
Los Angeles County.
n92 The dilemma the Lakewood Plan addressed was the fact that, while municipal
independence provides significant advantages (such as zoning power or control
over revenue), it simultaneously suffers from a major disadvantage: it is
expensive and inefficient to have each individual city, no matter how small,
offer the full range of city services. The solution the Lakewood Plan
introduced was to have Los Angeles County provide the services to municipal
residents under contract with the city. That way, the city could both reap the
benefit of inexpensive services and enjoy the advantages of local autonomy. The
Lakewood Plan stimulated the formation of dozens of new cities in Los Angeles
n93 As Mike Davis summarizes it, the residents of these new cities, while assuring
themselves of necessary services,
"could zone out service-demanding low-income and renting populations, eliminate
(through service contracting) homegrown union or bureaucratic pressures for
service expansion, and, perhaps most importantly, safeguard their property from
potential utilization as a resource for government expansion or fiscal
Of course, not every agreement between neighboring jurisdictions has the same
fragmentation-generating impact of the Lakewood Plan. Even the more innocuous
versions, however, when taken collectively, relieve the pressure to find
regional solutions for metropolitan problems.
"Intergovernmental agreements," in the words of the ACIR,
"may be a force for impeding more comprehensive reorganization approaches by
ameliorating popular dissatisfaction with conditions which in the long run can
only be effectively dealt with on a more comprehensive basis."
Currently, there is an academic movement in the United States called
n96 It is hard to pin down exactly what new
[*1787] regionalism is. Some aspects, advocates admit, are
"hardly new at all."
n97 These include descriptions of the current problems facing metropolitan regions
and proposals for forms of government organization - such as consolidation and
the two-tier model - that have long been familiar.
n98 What the advocates seem to see as new is their emphasis on what they call
"governance" rather than
"conveys the notion that existing institutions can be harnessed in new ways,
that cooperation can be carried out on a fluid and voluntary basis among
localities, and that people can best regulate themselves through horizontally
n99 Governance thus embraces interlocal agreements, the linking of related
services, and public-private partnerships.
"Governance of larger regions can occur organically, as a result of local
n100 There is a good deal of effort being put into this renewed faith in
voluntarism, not only in the United States.
n101 Some progress might well be made in this fashion on specific issues. But it is
hard to be too optimistic. For a long time, reformers concerned about regional
fragmentation thought that voluntary agreements might help city officials learn
the value of cooperation and thus lead to a broadening of their common agenda.
They also hoped that special purpose governments might be transformed into
multipurpose districts, and therefore become a version of two-tier regional
n102 It should be clear by now that voluntary agreements and special purpose
governments are not stepping stones toward comprehensive regional solutions but
successful methods of avoiding them. They leave permanently off the table the
most divisive issues facing metropolitan America - schools, crime, housing,
[*1788] and taxes.
n103 Moreover, they are not relied on simply because they are a way to deal with a
limited set of important regional issues while avoiding more contentious
topics. In most metropolitan regions in the country, voluntary agreements and
special purpose governments are the only legal mechanisms now available for
addressing metropolitan problems. The legal system needs to give metropolitan
residents more choices.
II. A New Relationship for Metropolitan Cities: Ideas from the European Union
A. Rethinking the Two-Tier Model
If a unified regional government is not an option, and if ad hoc solutions
exacerbate rather than relieve the problems of regional fragmentation, the best
hope for finding solutions to metropolitan problems lies in rethinking the
two-tier model of regional government. The problem with this model in its
current form stems from its conception of how local separateness and regional
togetherness should be combined. Two-tier theorists have sought to preserve
local autonomy while empowering a regional government to deal with matters
affecting the region as a whole. This picture of separateness and togetherness
imagines cities as able to make their own decisions on matters that affect city
residents unless the regional government is given authority over that activity.
Thus, by definition, regional and local power are seen as in conflict with each
other: increasing the power of one level of government necessarily reduces the
power of the other. Given this picture, defining the authority of the two
levels of government becomes the critical issue. Only if this is done correctly
can the exercise of local power be protected. In fact, the only relationship
considered important in this version of regionalism is the vertical one between
[*1789] higher levels of government and decentralized decisionmakers. The model
imposes no requirement that cities form connections with each other. To be
sure, they can if they want to. But, like all autonomous contracting parties,
they do not have to do so if it is not in their self-interest.
It has long been clear that the understanding of local autonomy presented by
this familiar version of regionalism is inaccurate as a matter of local
government law. Cities do not have autonomy - even under home rule - to make
their own decisions on a wide variety of matters that affect city residents.
n104 They do not even have the power to enter into interlocal agreements without
n105 Cities are creatures of the state, and state officials regularly and routinely
subject them to detailed supervision and control. State laws limit cities'
ability to decide how much revenue they can raise, what services they can
provide, and what regulations they can enact. And these are not the only
constraints on city power. A city's prosperity and quality of life are also
pervasively affected by decisions made by other cities. Exclusionary zoning
rules enacted by a neighboring city drive those excluded to move across the
city line, just as the neighboring city's approval of a giant shopping mall
generates economic decline across the border. Interlocal effects like these
illustrate why the idea of
"local control" is a fantasy: too many critical decisions are made without individual cities
even having a voice in the outcome.
What seems to matter in discussions of regionalism, however, are not these
limits on city power but the emotional - and politically powerful - attachment
to local decisionmaking on specific issues, such as land use and education.
Having delegated considerable authority over these issues to local governments,
state governments are largely unwilling to override their decisions even though
they have the power to do so. The extent of this delegated authority defines
city power: city
"autonomy" means the power that the state allows cities to exercise at any given time. To
find ways to connect metropolitan cities with one another, it is important to
understand these aspects of city power together with the constraints on city
decisionmaking authority. There are many such constraints even on the issues of
land use and education: contrary state decisionmaking regularly overrides
cities' efforts to provide affordable housing, to protect their environment
from pesticides, or to administer their schools.
n106 By focusing on both the attachment to local power and the limits placed on it,
we can begin to
[*1790] rethink the relationship between separateness and togetherness that
regionalists have so long embraced: the notion that every regional advance is a
setback for local power. There is no reason simply to assume that addressing
regional concerns always erodes local decisionmaking authority. On issues like
transportation, empowering a regional institution controlled by cities would
unmistakably empower cities and the region simultaneously: most decisionmaking
on transportation policy now lies in the hands of state and federal
governments. But the same can be said, as we shall see, about more divisive
issues such as housing and education.
n107 If properly conceived, regionalism can redefine the current mix of local power
and local powerlessness rather than simply reduce the first in order to
increase the second. For many cities, such a revised mix can improve their
ability to promote their self-interest and the regional interest simultaneously.
To be sure, achieving this confluence of local and regional interests will take
effort. There is no solution to regional problems that will make everyone
better off and no one worse off. Cities need to negotiate with each other to
work out the kinds of changes in city authority - both increases and decreases
- that will better protect collective interests while furthering, as much as
possible, local self-determination. Doing so requires a new regional
institution. But it does not require a regional government. What is needed
instead is an institution that will permit the region's cities to work together
to advance regional interests. The fundamental issue presented by this
alternative version of regionalism is not how to divide power between local and
regional decisionmakers but how to turn regional decisionmaking into a form of
interlocal decisionmaking. No doubt important questions need to be resolved
about what such a regional entity would do. But the possible answers to these
questions will vary depending on the level of citizens' confidence that the
regional institution will advance local interests rather than simply override
them. And this level of confidence will be affected by the structure of the
regional institution. A structure that required the unanimous consent of all
participating parties would inhibit the formation of any regional agenda.
Nothing in America commands unanimous consent. Yet a structure that allowed
local power to be overridden too easily would jeopardize the values provided by
local decisionmaking authority. The task of creating the right structure is
In my earlier work, I proposed that state governments establish a specific kind
of institution to advance this alternative version of regionalism
[*1791] - a regional legislature.
n109 Legislatures, after all, are the classic vehicles for enabling locally elected
officials to gather together to hammer out a common agenda. As I envision it,
however, the purpose of a regional legislature would differ from that of
locally elected legislatures at the state and federal level:
The purpose instead would be to create a democratic version of the idea of
regional planning embodied in federal legislation of the 1960s and 1970s. These
federal statutes sought to inject a regional voice into local decision making
by requiring local decisions to be consistent with a regional plan. Congress
hoped that such a requirement would overcome the pursuit of local self-interest
by forcing each locality to consider the impact of its actions on the region as
a whole. But the effect of these federal statutes was limited. They made
regional considerations relevant only in federal grant allocation; they created
as many different regional planning agencies as there were subject matters to
plan for; [and] they focused on requiring agencies to prepare a written plan
rather than on an ongoing process of regional negotiations ... . Nevertheless,
the germ of the idea was sound. The object was not to have regional bodies
replace local decision making but to require localities, when making their
decisions, to take the interests of other localities within the region into
A regional legislature can achieve this objective by borrowing from two
existing models - state legislatures and regional planning agencies. Like a
state legislature, a regional legislature should be relatively large, with
members popularly elected from cities across the region.
n111 Unlike a state legislature, however, it should be organized to perform a
single task: to serve as a vehicle for intercity negotiations designed to forge
a regional perspective on metropolitan issues. State legislatures are not
themselves an appropriate mechanism for undertaking this task. State
legislators are elected from districts that disregard city lines. It is not
plausible to expect people elected in this fashion (many from rural areas) to
redesign their own institution to give a voice to cities. They could, however,
create a regional legislature to do just that. Besides, metropolitan areas
demarcate a more appropriate boundary for intercity decisionmaking than do
state lines. Businesses have created regional economies filled with densely
[*1792] of related industries by establishing face-to-face relationships that cross
city boundaries, and many employees of these businesses have lived in more than
one city within the same metropolitan region because they have been able to
move without changing jobs. Other metropolitan residents cross city lines on a
daily basis to work, shop, or have fun. A regional legislature can build on
these existing interlocal connections.
To be effective, a regional legislature would have to have the power to ensure
that its decisions, once made, will be followed by the region's cities and
special purpose governments. It would thus have the power to control city
policy, including the power to redefine what it means for local government
institutions to pursue local interests. To be able to exercise this amount of
power, the regional legislature should derive its authority from a delegation
of power from the state legislature, not simply from a voluntary agreement
between the region's cities. This source of power need not transform the
regional legislature into a centralized regional government. The regional
legislature, after all, would - and this is crucial - consist of democratically
elected representatives of the cities themselves. It would be a way to give a
voice to cities. City representatives would be in control of the agenda. Not
only could they increase as well as decrease city power but, once a regionally
oriented definition of local self-interest became internalized into local
decisionmaking, they could leave the formulation and implementation of policies
in the hands of city governments. Indeed, the more discussions within a
regional legislature helped city officials understand the impact of their
decisions on each other, the less the regional legislature would have to do.
Still, a critical question remains. How can a regional legislature with this
much power be organized without undermining the advantages gained by
decentralizing power to city governments? Addressing this question is the task
of what follows. I examine below a source of ideas for the structure of such a
regional legislature: the European Union.
B. Ideas from the European Union
The fifteen nations that form the European Union have not abandoned their
devotion to national sovereignty.
n112 They nevertheless have created a much more connected relationship with each
other than have the cities that constitute America's metropolitan areas. Those
of us interested in American regionalism can learn a good deal from this
[*1793] European experience, notwithstanding the stark differences between the two
Some of these differences need to be emphasized at the outset. The European
Union was formed as a response to two devastating world wars - a level of
interjurisdictional conflict that has no parallel in metropolitan America. From
the outset, the European focus has been on economic integration, an issue that
is a matter for national policymaking in the United States. Trade barriers and
a common currency - like many of the other issues that concern the European
Union, such as defense and foreign policy - are not metropolitan issues in the
United States. Moreover, unlike the member countries of the European Union,
American cities are not sovereign nations. On the contrary, they are subject to
the very kind of power exercisable by a higher sovereignty - state governments
- that the members of the European Union are unwilling to cede to centralized
control. American states have the power to merge cities with each other, even
to eliminate them; a European Union with this kind of authority is not within
anyone's contemplation. The fact that cities are not sovereign nations is also
more than a reference to their lack of sovereign power. European countries have
long been understood by many of their citizens in terms of their cultural, and
not just their political, unity: a common language, a common history, even a
common ancestry have often been thought to distinguish one nation from another.
No one thinks of municipal boundaries as dividing one pre-political
"people" from another. Finally, the European Union has established a wide variety of
institutions that have no relevance in the American metropolitan context.
Indeed, its complex institutional structure is not only unnecessary but cannot
constitutionally be reproduced at the regional level in the United States.
Despite these differences, the European Union provides ways of thinking about
separateness and togetherness that offer promise for the American metropolitan
context. After all, many of the ways in which the European Union differs from
American metropolitan areas might have made the formation of connections within
Europe harder, not easier, to accomplish than regional cooperation in the
United States. If European countries could overcome nationalist loyalties - not
to mention the differences that led to two world wars - people who live in the
same metropolitan area within the United States should be able to relate to
each other at least as well. While it is true that American metropolitan areas
are fragmented in very divisive ways - often along lines of race, ethnicity,
and class - the European Union also faced stark differences in wealth and
ethnicity across the geographic area where interjurisdictional cooperation has
been built. And Europe did not have a powerful government - like state
governments - that could organize the necessary institutional structure to
[*1794] sources of conflict. The European Union's institutional structure had to be
created by interlocal agreement - that is, by treaties.
In our effort to learn from the European experience, however, it would be a
mistake to investigate
"how they did it" and then try to reproduce that process here. The problem with this approach is
not simply the dramatic differences in the contexts. There is no
uncontroversial explanation for how the European Union itself came into being.
Even the nature of the European Union in its current form is the subject of
considerable debate. It has been alternatively described as a vehicle for
intergovernmental bargaining, a supranational quasi-state, a political
structure but not a state, a federation, and a vehicle for promoting
n113 Moreover, the multiplicity of institutions in the European Union - including a
multimember Commission that governs a powerful bureaucratic structure and a
European Court of Justice - has provoked a controversy about a
"democratic deficit" that a democratically elected regional legislature in the United States could
avoid. Rather than enter into the debates about the operation of the European
Union itself, therefore, I intend simply to rip from their European context
specific institutional ideas that might help us reconceptualize the
relationship between local separateness and regional togetherness in the United
States. I shall leave unexamined most of the institutional structure of the
European Union. I will focus instead solely on three specific aspects of the
European Union that, once appropriately revised, suggest organizational
possibilities for a regional legislature in the United States: its creation of
a governing structure that cannot easily be categorized either as a voluntary
agreement or as a centralized state; its method of building a transnational
agenda even on issues as controversial as inequality; and its establishment of
a European citizenship.
[*1795] 1. Institutional Structure. - What interests me about the institutional
structure of the European Union lies in its attempt to build localism into the
very fabric of European institutions, rather than simply to divide authority
"centralized government" and
n114 Some elements of this model are familiar to American readers. Two of the
governing institutions of the European Union are the European Parliament
(elected roughly according to population) and the Council of the European Union
(a body consisting of representatives of the member governments).
n115 The European Parliament's allocation of membership roughly according to the
population of the member nations, while assuring each country a minimum
representation regardless of population, parallels the organization of the
United States House of Representatives.
n116 The Council's allocation of equal membership to representatives of the
constituent governments regardless
[*1796] of population parallels the organization of the United States Senate prior to
the adoption of the Seventeenth Amendment (which retained equal membership but
added democratic election of representatives). The problem with this aspect of
the European (and federal) method of building local control into a larger union
is that it offers an unconstitutional model for elected regional institutions
in the United States. The United States Supreme Court has rejected
"the federal analogy" for state and local governments because
"political subdivisions of States - counties, cities, or whatever - never were
and never have been considered as sovereign entities. Rather, they have been
traditionally regarded as subordinate governmental instrumentalities created by
the State to assist in the carrying out of state governmental functions."
n117 Although the Court has given some deference to the desire to respect the
boundaries of political subdivisions, it has refused to allow this deference to
override the requirement that districts must at least be approximately equal in
n118 Thus, the familiar bicameral structure that allocates power in one of two
governing bodies to political subdivisions as such is not an available option
for metropolitan governance in the United States. Any regional institution has
to be organized according to the one-person, one-vote principle.
Many observers have thought that this requirement dooms any democratically
organized regional institution that might address metropolitan problems. As
Justice Harlan put it in his dissent in Avery v. Midland County (the case that
applied the one-person, one-vote formula to local governments):
Suburbanites often will be reluctant to join the metropolitan government unless
they receive a share in the government proportional to the benefits they bring
with them and not merely to their numbers. The city dwellers may be ready to
concede this much, in return for the ability to tax the suburbs. Under the
majority's pronouncements, however, this rational compromise would be forbidden
Justice Harlan presented the problem in terms of the fear that the central
city would dominate a population-based metropolitan structure. Today the
problem is typically the reverse: because a majority (often more than eighty
percent) of the residents of metropolitan areas lives in the suburbs, the
equality requirement puts the suburbs in control of any democratically elected
[*1797] The suburbs, however, are not a monolithic voting bloc. The current split
between prosperous and declining suburbs renders uncertain the kind of alliance
among political subdivisions that would control a regional legislature in most
American metropolitan areas. This uncertainty presents its own problem: the
requirement of one-person, one-vote would threaten every political subdivision
within the regional legislature. Any city decision could be overruled by a
coalition of other cities. Organizational ideas to deal with fear of loss of
local control are therefore indispensable, given the emotional attachment to
local decisionmaking. Ideas about how to ensure that the desire for local
control does not overwhelm the possibility of forging a regional agenda are
also indispensable. The structure of the European Union offers two useful
suggestions about how to achieve these conflicting objectives: qualified
majority voting and regionwide political parties.
(a) Qualified Majority Voting. - The Council of the European Union (consisting
of representatives of each of the fifteen member countries) first deals with
its members' fear of loss of control by seeking to establish policy through
consensus. But the formal decisionmaking rules of the Council address the same
fear. Different rules apply depending on the issue being decided: sometimes
unanimity, sometimes a simple majority, and sometimes a qualified majority is
n121 The notion of a qualified majority is the most unfamiliar of these
decisionmaking methods to American readers. The European Union defines a
qualified majority for Council decisionmaking by allocating votes to individual
members very roughly according to their population and, in addition,
establishing a minimum number of votes (and sometimes a minimum number of
members casting these votes) before a policy can be adopted.
n122 The results of a vote thus depend
[*1798] on the specifics of how this formula is constructed - the extent of variation
from a one-person, one-vote standard allowed in allocating votes to the
different members; the minimum number of votes required for adoption; and the
minimum number of members (if one is set) required to cast these votes. These
ingredients have long been the subject of considerable controversy within the
n123 The Treaty of Nice (which was signed in December 2000 and is now in the
process of ratification) not only changed the minimum number of members
required for qualified voting and the number of votes allocated to member
countries within an expanded European Union but also added an additional
variable: it established a requirement that a qualified majority
"represent at least 62% of the total population of the Union."
n124 The specifics of the ways in which these various ingredients have been set and
reset for the Council are not of significance here. What is significant is the
idea of organizing the Council in terms of qualified majority voting. Although
the Council also relies on simple majority and unanimity rules, neither of
these is likely to be useful in a regional setting in the United States. A
simple majority requirement demands too little regional consensus for
policymaking to be widely acceptable, while a unanimity rule would make
decisionmaking impossible given the hundreds of cities represented in a region
(as opposed to the fifteen nations represented in the European Union). The
ingredients of a qualified majority voting system, however, can protect
individual jurisdictions by establishing the minimum level of agreement
required for action, while at the same time giving greater weight to the views
of the most populous cities in the region.
Creating a regional institution with a qualified majority voting mechanism in
the American metropolitan setting would involve a major change from the
European structure. The qualified majority rule would be adopted in a regional
legislature organized not in terms of equal membership (like the Council) but
according to population (like the European Parliament). By allocating votes for
qualified majority voting within the Council very roughly according to
population, the European mechanism itself incorporates aspects of this model.
n125 But the number of votes allocated to each jurisdiction in a regional
institution in the United States would be considerably less flexible because
the allocation would have to track population levels more closely. Still, much
of the value of the idea remains. A qualified majority voting
[*1799] mechanism would enable every city in a region to be represented in a regional
legislature and would simultaneously take into account population differences
among the cities represented.
Creating this kind of interlocal institution would be a major innovation in
America: there is no institution in the country that allows a region's cities
to meet together and forge a common policy that is binding on all of them. The
idea of giving a voice to every political subdivision would also be an
innovation in the organization of population-based legislative bodies in the
United States. Districts for state legislators and members of the House of
Representatives routinely divide some cities while combining others; the effort
to draw district lines for state and federal purposes concentrates on creating
equally sized districts (and on tracking party membership and protecting
incumbents) rather than on giving a voice to political subdivisions. This is
one of the many ways in which the
"local autonomy" that is so valued in the regionalism debate is completely disregarded in other
contexts. On issues decided by the state and federal governments, cities are
not decisionmakers at all. They are relegated, along with private corporations
and interest groups, to being lobbyists. A regional legislature organized
according to qualified majority voting, by contrast, would enable
representatives of the cities themselves, acting collectively, to become the
A principal reason why political subdivisions are not now represented in
legislatures in the United States is the difficulty of squaring such a notion
of representation with the constitutional requirement of one-person, one-vote.
n126 A qualified majority voting mechanism offers the best way to do so. It allows
a legislature to be organized according to political subdivisions and to the
size of city populations simultaneously: every political subdivision would be
represented in the legislature, but the number of representatives for each
subdivision would vary with its population. At the same time, a qualified
majority voting mechanism would prevent the domination of the legislature by
small numbers of the largest jurisdictions by establishing a specified minimum
number of votes before a measure can be adopted. A legislature so organized
would, in my opinion, be constitutional. Two of the variables in the qualified
majority mechanism outlined above - the specification of a minimum number of
legislators needed to pass a measure and the requirement that the legislators
voting in favor represent a minimum percentage of the regional population - are
variations on a supermajority requirement. The Supreme Court has upheld
[*1800] the constitutionality of a supermajority voting requirement against a
one-person, one-vote challenge.
n127 The third variable - requiring a minimum number of jurisdictions to support a
measure - is likely to be more controversial. Yet even this feature can be
understood as a way of organizing legislative voting rules rather than as a way
of organizing elections. After all, each legislator would be elected by an
(approximately) equal number of constituents - the basic requirement of the
one-person, one-vote rule. Given the Supreme Court's deference to state
decisions that give a voice to political subdivisions as long as legislative
districts remain equal in size
n128 - and given the need for flexibility when organizing regional institutions -
this element also seems likely to be held constitutional. The Supreme Court has
never struck down internal legislative voting rules on one-person, one-vote
This is not to suggest that organizing a regional legislature with a qualified
majority voting system would be easy. The minimum number of votes, the minimum
number of jurisdictions supporting the measure, and the minimum regional
population represented by the vote would have to be worked out (or eliminated
from the formula). The process of enacting state legislation establishing these
figures would engender a complex negotiation, with the results varying from
region to region given the different populations - and number - of cities in
each metropolitan area. Of course, once a regional legislature was established,
the numbers could be revised over time as experience revealed the levels that
were high enough to assuage the fear of loss of local control yet low enough to
enable the pursuit of a regional agenda.
n129 There certainly is no reason to assume that the figures adopted by the
European Union - three-quarters of the votes, two-thirds of the members (on
certain issues), and (if the Treaty of Nice is ratified) sixty-two percent of
the population - would be the right ones in any American metropolitan area,
although they illustrate the kind of options available.
n130 Yet virtually any agreed-upon figures are likely
[*1801] to be an improvement over the status quo. Currently, there is effectively a
unanimity rule on some regional issues - those delegated to local
decisionmaking. Any jurisdiction can undermine a regional plan by refusing to
cooperate with other cities. On other regional issues - those entrusted to the
state or to neighboring cities - local jurisdictions need not even be consulted
in the decisionmaking process. Every metropolitan area in the country should be
able to craft a qualified voting mechanism better than this oscillation between
a local veto power and local irrelevance for regional decisionmaking.
After working out the voting rules, a decision would also have to be made about
how large a legislature to create. A regional legislature with a qualified
majority voting system could be organized to give the least populous city in
the region one vote.
n131 The amount of representation given every other city could then be built on
this base, enabling each legislator to represent approximately equal numbers of
people. Although this method is simple, it would make the number of
representatives in the legislature very large. Consider, for example, the
Boston region - one of the nation's largest. According to the 2000 census,
there are 129 cities and towns in the region, ranging in population from 844
(South Hampton, New Hampshire) to 589,141 (Boston itself). The total regional
population is 3,406,829. If each city had a representative for every 844 people
- thereby giving South Hampton one representative - it would mean a total of
roughly 4000 representatives, with Boston having 698, Newton (a city of 83,829)
having 99, and Newbury (a town of 6717) having 8.
[*1802] Many readers might immediately dismiss such a large legislature as absurd. But
it would have distinct advantages. It would be a genuine microcosm of the
region, making visible the diversity in the size and nature of the cities that
constitute the metropolitan area. The numerous representatives from large (and
even mid-size) cities would also reveal the diversity within individual city
borders, a diversity that would belie the widespread notion that there is only
one way to pursue a locality's self-interest. Moreover, the fact that so many
people would participate in the regional legislature would have political
advantages: having thousands of people actively thinking about regional issues
would dramatically change regional (and state) politics. Even the oddity of
building the system on a small town like South Hampton might have a political
impact. It could generate discussion about whether dividing the region into 129
cities and towns, including towns that small, makes sense. Besides, there is no
reason to assume that a 4000-person body is by definition unmanageable. As with
the European Parliament, committees could be formed to work on specific issues,
and an Executive Committee, elected by members of the regional legislature,
could be organized to formulate proposals for legislative consideration.
n133 The entire body would have to vote only on basic policy decisions, and those
votes would have considerable legitimacy given the number of people involved in
Those unconvinced by these arguments need not abandon the idea of creating a
regional legislature with a qualified majority voting mechanism. They can
simply reduce the number of representatives by giving each of them weighted
votes. To ensure that every city has a voice in the legislature, the minimum
number of representatives would have to equal the number of cities. In the
Boston area, the minimum number would be 129. With that number as a starting
point, votes could then be allocated according to the city's population. If
each city had only one representative, the Boston representative would get 698
votes and the South Hampton representative would get one. This kind of system
already exists in some areas of the United States, and it too has been upheld
as constitutional under the one-person, one-vote requirement.
n134 But there is no need for the number of representatives to be one per city.
Larger cities could have multiple representatives, and most smaller cities
could have more than one, as long as the system allocated voting strength
according to population.
[*1803] In deciding how many representatives to have, it is important to recognize
that the presence of people in the room - and not just their voting power - has
an effect on the outcome. A one-representative-per-city regional legislature
would have many people in the room who, collectively, would have very few
votes. Adding more people from the more populous towns would change the dynamic
of the discussion. Besides, a one-vote-per-city rule falsely suggests that city
residents are not themselves divided on issues, while electing multiple
representatives would allow cities to have legislators who disagree with each
other. It is also useful to remember that the European Parliament has 626
representatives (99 from Germany alone), the British House of Commons 659
members, and the German Bundestag 669 members - and that regular attendance in
the assembly in classical Athens is thought to have been over 5000.
n135 Whatever the number of legislators, the representative from South Hampton
would be in the room with representatives from Newton and Boston. And all of
them collectively would be empowered to negotiate and vote on regional matters.
Since 1991, the General Assembly of the Puget Sound Regional Council
(encompassing the four-county region of greater Seattle) has been organized as
a variant of this scaled-down, weighted-voting version of the regional
n137 To my knowledge, the Puget Sound General Assembly - with more than 600 members
- is the only large-scale regional planning organization in the nation. The
[*1804] of the Assembly include every elected official from the region's four counties
and from the cities and towns within those counties, including county
commissioners, mayors, and city council members.
n138 A weighted voting system allocates voting strength to the counties by giving
each county the number of votes proportionate to its share of the regional
population. Two-thirds of those present and voting must approve certain
critical decisions, such as the regional transportation plan and the growth
management strategy; other decisions are made by majority vote. There are
significant differences between the organization of the Puget Sound General
Assembly and the proposed regional legislature.
n139 But it demonstrates that it is possible and, its
[*1805] Executive Director reports, politically useful
n140 to organize a democratically accountable institution that is big enough to
allow representatives of every locality within the region to meet together and
forge regional positions on issues that affect them all.
[*1806] (b) Party Representation. - Reliance on a qualified majority voting rule
emphasizes jurisdictional boundaries as the building blocks for regional
decisionmaking. Legislators are encouraged to understand themselves as
representatives of their own political subdivisions and, therefore, to cast
their votes with an eye toward their constituents' parochial interests. This
jurisdictional emphasis may well be a good basis for the initial organization
of a regional legislature. It is hard to imagine that the European Union could
have been organized without recognizing the importance of jurisdictional lines.
In my view, however, this amount of emphasis on jurisdictional boundaries is
excessive. An additional mechanism is needed to reinforce legislators'
commitment to building regional connections across local boundaries rather than
simply cementing their ties to their own locality. Moreover, particularly if
there is a large number of legislators, it seems necessary, to get business
done, to organize the disparate members of the legislature into fewer
categories than is possible under a jurisdiction-by-jurisdiction legislative
structure. Both of these objectives can be advanced by adapting another
ingredient of the structure of the European Union, this time taken from the
organization of the European Parliament rather than from the Council.
The members of the European Parliament are elected nation by nation, but the
representatives from each nation are chosen in contests among national
political parties and are organized through a system of proportional
n141 As a result, every delegation in the European Parliament is divided by
political party. Moreover, the representatives from each national party link
with like-minded people from other nations - indeed, sit with them on the floor
of the Parliament - to form cross-jurisdictional political parties.
n142 Political parties therefore create a cleavage within the European Parliament
that is not based on jurisdictional lines. This cleavage divides people from
the same jurisdiction while it unites those from different jurisdictions who
agree with each other on issues. It therefore creates a different dynamic for
regional argumentation and decisionmaking than would a system based purely on
geographical representation. Jurisdictional unity can be maintained in the
European Parliament only if the national representatives from different parties
view their common jurisdictional tie, rather than their political divisions, as
central to the issue being debated. Experience has demonstrated that left-right
debates, rather than centralization-decentralization debates, dominate
deliberations in the European Parliament.
[*1807] Elections to the European Parliament are based on already existing political
parties and on each country's election laws; elections are
"second-order national contests."
n144 A regional legislature in the United States cannot be built on a comparable
foundation. Many local elections in the United States are
"nonpartisan," notwithstanding the fact that voters are divided about how to deal with issues
such as schools, crime, housing, jobs, and taxes. Even when officials are
elected as Democrats or Republicans, local elections rarely turn on the kinds
of issues that might unite party representatives across a metropolitan area.
Organizing the election system of a regional legislature as a competition
between political parties would thus create a new type of political structure
in American metropolitan areas. That, I suggest, is one of its advantages. For
far too long, supporters of regionalism have perpetuated the pretense that
regional issues can be decided by experts without political conflict - a
position that has fostered the creation of countless regional authorities. We
should, it seems to me, embrace the opposite position. Political conflict is
more likely to generate negotiations over, and support for, a regional agenda
than are appeals to neutrality or expertise. After all, conflict over how to
improve the public schools, reduce the crime rate, provide affordable housing,
stimulate the economy, and raise local tax revenue already exists. Debate on
these issues should inform regional decisionmaking. New parties might well
emerge once this is done: given the environmental focus of many regional
issues, for example, regional elections might become a method for organizing
the Green Party in the United States.
Political parties can do more than organize regional elections and link
representatives from different cities in the metropolitan area. They can also
contribute to the effectiveness of the regional legislature. Once
representatives from the same party are grouped together within the
legislature, the parties can become the basis for organizing legislative
business. In Europe, for example:
The party groups control the nomination of the key offices of the Parliament,
such as the [European Parliament] president, the appointment of committee
chairpersons, internal offices within the groups, and the rapporteurships on
the different pieces of [European Union] legislation. As [members of the
European Parliament] have learned that their ability to play an influential
role in the [European Parliament] is increasingly dependent upon the party
groups, there has been a growing
"cohesion" of the groups in the legislative workings of the parliament.
This kind of cohesion can strengthen interjurisdictional ties. And, especially
if the regional legislature is large, it can facilitate decisionmaking
[*1808] by dividing legislators into groups with a workable number of members.
A party-based structure of a regional legislature could utilize the
winner-take-all form of elections that now dominates American electoral
politics. But a system of proportional representation would be better.
n146 In a one-representative-per-city regional legislature, a winner-take-all
system would allocate each jurisdiction to a single political party. Even if
jurisdictions had multiple candidates, citywide contests for these positions
(like at-large elections for city council seats) might generate a similar
result. A proportional representation system, by contrast, would ensure that
both (or multiple) sides of the debate within each multimember jurisdiction
would be represented by members of the legislature in accordance with their
voting strength. It would therefore enable like-minded people to form alliances
across more jurisdictions than would a winner-take-all system. Proportional
representation would also address another problem that a large regional
legislature would face: the difficulty of recruiting candidates and of
familiarizing voters with those candidates once they are recruited. In one
version of a proportional representation system, parties propose lists of
candidates, and the elections are structured more in terms of the substantive
debate between the parties than in terms of the personalities of each of the
candidates. Given the multiplicity of local candidates for whom Americans now
vote - often with little information about them - such a method of organizing
elections is likely to foster more interest in, and knowledge about, contests
for the regional legislature than would a winner-take-all system.
This is not to suggest that American metropolitan areas should simply reproduce
the European model of proportional representation. As mentioned above,
elections to the European Parliament are second-order national contests. The
parties in each country run their own elections, and the election contests tend
to focus on national rather than on European-wide issues.
n147 It might be more effective in the United States to have at least some regional
legislators elected by proportional representation regionwide, rather than city
by city. The presence of these regionwide delegates in the legislature might
[*1809] the interjurisdictional debate and, simultaneously, help form a regionwide
constituency for change.
Combining qualified majority voting with party-based elections is a significant
departure from what now exists in the European Union. Qualified majority voting
in the European Union exists only in the Council; democratic elections based on
proportional representation exist only in the European Parliament.
n148 The combination of these two features in a one-chamber regional legislature
would thus raise complexities not faced in the European Union. Proportional
representation would cause representatives from the same jurisdiction to come
from differing parties, and this split would affect the allocation of votes in
a qualified majority voting system. This result of the combined system could be
handled in a variety of ways. Adding up the fractional votes of each
jurisdiction would emphasize the importance of the political divisions at the
expense of jurisdictional influence; a winner-take-all system (like the
Electoral College) would, by contrast, emphasize jurisdictional separation
rather than political alliances. No doubt, any solution would be complex. But
the combination of party representation and qualified majority voting seems
well worth the costs in complexity. It would create a mechanism that balances
jurisdictional ties and cross-jurisdictional alliances in a promising, albeit
(c) Other Institutional Ideas. - Qualified majority voting and regional
political parties do not exhaust the institutional ideas embraced by the
European Union that might be useful for structuring regional legislatures in
America. The European Union has adopted a variety of other methods that attempt
to strengthen interjurisdictional ties while acknowledging the importance of
protecting national sovereignty. The Council, for example, rotates its
presidency every six months.
n149 This policy of rotation recognizes the critical role that leaders play in
setting the agenda and organizing debates in decisionmaking bodies. Equally
importantly, a structure that allows a representative from every member nation
to preside over the Council in turn stresses the importance of jurisdictional
affiliation yet, paradoxically, prevents a narrowly defined jurisdictional
self-interest from dominating the collective agenda. Rotation of leadership in
a regional legislature to representatives of different types of cities, rather
than to representatives of every city, might accomplish the same purpose.
The structure of the European Commission illustrates another means of achieving
a similar objective. The twenty members of the
[*1810] Commission must include one person - and cannot include more than two people -
from each of the member nations.
n150 But these Commission members, once appointed, are expected to act
"in the general interest of the Community."
n151 To ensure this result,
"they shall neither seek nor take instructions from any government."
n152 Although the proposal under discussion envisions a regional legislature and
not a quasi-executive body like the Commission, a regional legislature will
need staff assistance. Staffing for the legislature could adapt the Commission
structure to ensure that employees come from a variety of jurisdictions while
tempering their jurisdictional loyalty through a mandate that they serve the
region as a whole.
Finally - to mention but one more idea - the Council has numerous
"sectoral" councils designed to address specific substantive areas,
n153 and the European Parliament has committees that focus on specific subject
matters as well.
n154 Committees such as these are common in legislative bodies in the United
States. But while the parliamentary committees are organized in terms of party
membership, the sectoral councils are organized by jurisdiction.
n155 A regional legislature could establish committees in both forms depending on
the issue being discussed. For example, it might make sense to allow the cities
primarily affected by an issue to form a committee to address it.
There is a considerable literature that examines how qualified majority voting,
political party representation, and the mechanisms just listed (along with many
others) function in the European context.
n156 But it should be clear by now that my proposal for a regional legislature
bears little relationship to the institutional structure of the European Union
itself. No body in the American metropolitan setting would represent the
constituent political jurisdictions equally - a defining feature not only of
the Council of the European Union but also of the European Council, the summit
meetings of the presidents, prime ministers, or foreign ministers that have
made a number of
"history-making" decisions for the European Union.
n157 There would be no multimember Commission functioning as a quasi-executive, yet
in Europe the Commission
"epitomizes supranationalism and lies at the
[*1811] center of the [European Union] system."
n158 There would be no Court of Justice. There would be no need, as there is in
Europe, to work out the complex division of powers among these bodies and the
European Parliament. The point of this Section is not to suggest that the
organization of the European Union can be reproduced in American metropolitan
areas. Nor do I intend to suggest that Europe has found a division of powers
that adequately balances national and supranational interests. The point
instead is to demonstrate that there are ways to combine separateness and
togetherness that cannot simply be categorized as examples either of an
interjurisdictional agreement or of a centralized government. I have tried to
make the nature of the regional legislature as difficult to pin down as
commentators have found the structure of the European Union.
n159 I have purposefully left the details of combining qualified majority voting
with a political party structure vague in the hope that both those who want to
protect city power and those who want to achieve regional objectives might
consider the proposal a workable starting place for discussion. Perhaps I have
not accomplished this objective. Perhaps the legislature gives too much power
to collective decisionmaking or too much power to individual jurisdictions
within the region to thwart collective decisionmaking. If so, I invite the
reader to make the adjustments necessary to deal with whichever imbalance he or
she finds. No state is going to create a regional legislature without modifying
the suggestions I have made above. Each of them will have to invent its own
version of an acceptable - and constitutional - institutional design. There is
no reason to expect that those designs will be the same.
Some advocates of local power will insist that any regional institutional
structure is unacceptable. Instead, they might say, each city should simply be
empowered to make its own decisions for its residents. But local government law
never has allowed - and could not conceivably allow - individual cities to
decide an issue simply because their residents care deeply about it. The cities
located in the same metropolitan area are so closely connected to each other
that virtually every city decision has extraterritorial impact, and city
decisions often affect residents' rights in a manner inconsistent with state or
federal law. That is why federal, state, and special purpose governments decide
so many issues of importance to local residents. Neither local control nor
centralized control accurately describes the status quo. The question is
whether a better way to combine local and collective decisionmaking can be
designed. The judgment that it is better, of course, will depend not just on an
analysis of its institutional
[*1812] structure but also on its ability to make progress on key regional issues.
2. Building a Substantive Agenda. - The European Union is a dramatic expansion
- in membership, institutional complexity, and scope of authority - of the
European Coal and Steel Community, an entity established by six of the European
Union's current members in 1951.
n160 Coal and steel raised complex and divisive issues at the time. The industries
straddled the frontiers of many of the member countries; coal and steel were
indispensable ingredients in the member nations' industrial economies and
military power; decisions about access to these resources (including for
rearmament) were central to the French-German relationship. The topic that led
to the creation of the European Coal and Steel Community, in short, was very
important - and it was limited in scope. Moreover, many of its supporters
envisioned the institutional structure that the member nations constructed to
address this topic as a first step toward collective European decisionmaking
over a larger range of issues.
n161 But it was only a first step. The organization of the European Coal and Steel
Community bears little relationship to the current structure of the European
n162 Two elements in this history might be helpful in the American metropolitan
setting. A regional legislature could be formed to deal with one key issue and,
over time, the scope of its agenda could be expanded, as long as the initial
institutional structure is one that can be developed and strengthened over
time. I turn below to an analysis of how a regional legislature in the United
States might get started in this way. I then address an issue that is unlikely
to be first on the agenda of a regional legislature but, for regional
cooperation to be successful, is unavoidable: the issue of equality.
(a) Getting Started. - Given the differences among American metropolitan areas,
the political effort necessary to convince a state legislature to establish a
regional institution is likely to generate different starting points across the
country. Many issues could serve as an initial focal point for such an effort.
For our purposes, it does not much matter which issue is selected to be first.
All of the important regional issues are so interrelated that, wherever one
starts, dealing with the first topic will require addressing the others. In
[*1813] example, traffic problems - and the air pollution crisis they helped produce -
recently generated pressure for a regional solution.
n163 Traffic problems result from the location of housing, jobs, and commercial
life. The quality of the schools and the crime rate influence housing
decisions: those who can afford to do so move to where the schools are good and
the crime rate low. Tax policy and zoning rules help determine where that is.
Tax revenues are based on property values: the differences in the levels of
funding available for schools and crime control reflect differences in the
quality of housing, jobs, and commercial life. Zoning rules allow some
localities to attract the
"better" types of residents and businesses and exclude the rest. But neither businesses
nor city residents can settle in these favored locations unless commuters,
shoppers, and schoolchildren have a (government-supported) transportation
network that allows them to travel back and forth. Transportation, housing,
schools, crime, taxes, jobs - it is hard to think about one of these issues
without thinking about the others. Those who support regional solutions embrace
this interconnection because it generates a momentum that will lead to the
expansion of the regional agenda. Those who are skeptical of regional solutions
fear this very momentum.
The task is to find an entrance point that will generate enough political
support for a regional legislature to address one element of this agenda. Let's
consider, simply as an example, the possibility of establishing a regional
legislature to focus on transportation issues. The metropolitan dimensions of
transportation decisions have been obvious for a very long time.
n164 These days, there is widespread interest in regional transportation planning.
Innovative urban planners and architects emphasize the importance of regionwide
n165 and popular literature targets the car as the prime cause of the decline of
n166 The federal government has required regional planning as a condition of its
financial support for highways
[*1814] and mass transit since 1962,
n167 and the passage of the Intermodal Surface Transportation and Efficiency Act
n168 in 1991 broadened its support for these planning efforts.
n169 Metropolitan residents themselves focus more on regional connections than on
their own municipal boundaries when transportation, rather than housing or
schools, is the issue. Much of their discussion of transportation problems
concentrates on intercity mobility: traffic problems have become a nightmare
for suburban commuters, access to jobs a necessity for residents of poor
neighborhoods, the trade-off between highways and mass transit a battle cry for
n170 Poll data from across the country suggest overwhelming support, in the suburbs
as well as the central cities, for reducing the emphasis on highway
construction that has dominated transportation policy over the last fifty years.
n171 Most importantly, a focus on transportation can help demonstrate how a strong
regional institution can enhance local power rather than be its enemy. Cities
have little power over transportation policy.
n172 Federal legislation and funding have played a critical role in designing the
urban transportation network since the 1950s.
n173 But state departments of transportation dominate the decisionmaking process
[*1815] the federal transportation funds go and what kinds of transportation projects
n174 Currently, their decisions disadvantage metropolitan areas. They allocate
federal transportation spending in a manner that favors rural areas over
urbanized areas, and their support of highways in the urban fringe fosters
sprawl at the expense of central cities and inner suburbs alike.
n175 Given the widespread support for alternative policies, a regional legislature
could help metropolitan cities collectively increase their power over an issue
that individually they can do little about.
A regional focus on transportation issues would not be an innovation. State
highway departments first created metropolitan planning organizations (MPOs) in
the 1950s, and, spurred by the federal legislation of the 1990s, MPOs now exist
in metropolitan regions across the country.
n176 Although these MPOs are not all alike, most consist of local officials along
with representatives of the state government and other agencies.
n177 The members of the Boston MPO, for example, include representatives from
Boston and six other cities, representatives from state agencies, public
authorities, a regional planning agency, and a policy advisory group, and, ex
officio, two representatives from the
[*1816] federal government.
n178 The San Francisco Bay Area's Metropolitan Transportation Commission has one
elected official from each of the area's nine counties, a representative from
the City of San Francisco, four individuals representing
"the cities" of the four largest counties other than San Francisco, two representatives
from regional agencies, and, ex officio, a state official and two
representatives of the federal government.
n179 These and other MPOs throughout the nation have one thing in common: none of
them consists of elected members who represent all metropolitan residents
equally. In Boston, local officials make up a minority of the board and come
from seven of the 101 cities included in the region (as defined by the MPO).
n180 Moreover, all seven local representatives have an equal vote on the board even
though Boston has more than twice the population of the other six cities
n181 (Of course, the six city representatives on the Boston MPO are supposed to
"represent" the absent cities in the region but, especially for the purposes of
transportation planning and without a democratic election, it is hard to know
what the term
"represent" means.) In San Francisco, fourteen of the nineteen members are local
officials, but the counties represented vary in population from 1,682,585 to
124,279, and one of the counties with two representatives (one representing the
county, one representing its cities) has more than twice the population of
What are we to make of this kind of regional structure? Clearly, MPOs are not
organized according to the one-person, one-vote rule.
n183 This is not to say that their organizational structure is unconstitutional.
Membership in local governmental bodies need not be allocated according to the
one-person, one-vote formula if the members
[*1817] are appointed rather than elected.
n184 That, unmistakably, is the structure of the Georgia Regional Transportation
Authority (GRTA), the public authority created to deal with the transportation
problems in the Atlanta region.
n185 Perhaps we should understand MPOs to be like GRTA. This reading would explain,
for example, the presence of state officials and other agency representatives
on the boards of the MPOs. Yet, unlike GRTA, MPOs are supposed to introduce a
regional perspective into the planning process. Their purpose, at least in the
eyes of the federal government, is to foster the decentralization of power on
transportation issues to regional decisionmakers.
n186 Without local representation, MPOs would lack legitimacy as
"metropolitan planning organizations." Perhaps, then, we should understand MPOs as representative bodies but also as
institutions that have only limited authority. Even the seats on an elected
local governmental institution need not be allocated according to the
one-person, one-vote formula if the entity does not exercise general
n187 Courts have upheld the constitutionality of regional planning agencies on the
ground that, unlike city governments and school boards, they
"perform far fewer functions that could reasonably be considered governmental in
n188 Yet the most common critique of existing MPOs is that they need more power -
that the state dominates or disregards their decisions.
n189 If they were given more power, however, they should be organized according to
one-person, one-vote principles. Unless, that is, MPOs should both be given
more power and remain unrepresentative of the region - a result that would
undermine their legitimacy.
[*1818] The fact that existing MPOs have a
"democratic deficit" - to use the European term - is not news. The remedy, however, is often
thought to lie in public hearings, consultation with citizens and interest
groups, and the like.
n190 Instead, I suggest, the remedy is to replace MPOs with regional legislatures
that represent the region as a whole. It is difficult to justify giving more
power to MPOs as they are currently organized. After all, they are not bodies
composed of experts; they are largely composed of politicians. Yet these
political figures do not accurately represent the population of the region.
Moreover, unlike a democratically elected regional legislature, MPOs cannot
generate political pressure on the state government to decentralize power.
Quite the contrary: the state government creates MPOs, and they generally
remain subservient to it.
n191 Nor are MPOs an effective mechanism for widening the regional focus to address
issues other than transportation. Most MPO members who are not local officials
represent transportation agencies;
n192 much of an MPO's work focuses on the allocation of federal transportation
funds; states organize MPOs not to increase local power by fostering interlocal
negotiation but to prepare a transportation plan. In short, MPOs have the
structure that has long dominated planning agencies designed to distribute
federal resources - a structure that, I argued earlier, a regional legislature
n193 Regional legislatures would have the legitimacy, flexibility, and political
potential that MPOs lack.
The reason to shift transportation planning responsibilities from MPOs to a
regional legislature would be to increase regional power over these decisions -
that is, to decentralize power. For the regional legislature to be successful,
the state must delegate to it - rather than to the state department of
transportation - control over regional transportation policy (leaving the
department of transportation responsible for the region's relationship to the
rest of the state and, if necessary, to other regions). I postpone to Part III
a discussion of the politics of accomplishing this shift of power.
n194 At the moment, my focus is limited to considering the kind of topic that might
[*1819] support for such a shift. The existence of more than 300 MPOs in the United
States is both the great advantage and the great disadvantage of concentrating
initial efforts to establish a regional legislature on transportation issues.
The advantage is that the regional focus is already in place, a considerable
amount of valuable work has already been done, substantial federal funds are
available for planning purposes, and there is widespread popular support for
tackling the problem. The disadvantage is that the effort to create a regional
legislature would have to answer the argument that no regional legislature is
needed because existing agencies already deal with the problem. Worse still,
the federal statute that funds MPOs, while allowing states to design their
structure for smaller metropolitan areas, requires metropolitan areas with more
than 200,000 people to include on MPO boards not only local elected officials,
but also state officials and officials that operate local modes of
n195 In other words, the effort to establish a regional legislature would have to
tackle not only its relationship with current MPOs but also federal law.
Neither of these problems is dispositive. The drafters of the federal statute,
it seems to me, anticipated that localities would resist transportation
planning, not embrace it more fully. If so, federal officials might view a
popularly elected regional legislature favorably and therefore interpret the
federal statute (or draft a technical amendment) in a supportive way.
n196 Even the relationship with current MPOs might be worked out. Some of the MPO
structure - and much of its personnel and expertise - could be folded into the
new legislature. A large regional legislature, like any legislature, would not
be equipped to handle the intricate complexity and technical detail of
transportation planning. Its tasks would be to confront the basic political
issues raised by the design of the transportation network, to forge a regional
perspective on the key disputes, and to expand the existing framework to
related issues like land use. The MPO staff could continue to provide the kind
of detailed analysis and specific recommendations that are an indispensable
background to these legislative deliberations and to the implementation of the
n197 To be sure, this scenario may seem too rosy in any particular metropolitan
area. The problems with focusing on transportation might be so serious that
[*1820] issue should be selected as a starting point. There are many possible
candidates from which to choose,
"smart growth" being the one with the highest political profile at the moment.
n198 It too would have its problems. The fact that there is no current metropolitan
planning apparatus dealing with smart growth, for example, is not an obvious
Whatever issue is selected as the organizing first step, the regional
legislature cannot address it without expert advice and assistance. But the
basic policy decisions are political. As Hanna Pitkin and Sara Shumer put it:
Expertise cannot solve political problems. Contemporary politics is indeed full
of technically complex topics, about which even the educated feel horribly
ignorant. But on every politically significant issue of this kind, the
"experts" are divided; that is part of what makes the issues political. Though we may
also feel at a loss to choose between them, leaving it to the experts is no
solution at all.
... While various kinds of knowledge can be profoundly useful in political
decisions, knowledge alone is never enough. The political question is what we
are to do; knowledge can only tell us how things are, how they work, while a
political resolution always depends on what we, as a community, want and think
right. And those questions have no technical answer; they require collective
deliberation and decision. The experts must become a part of, not an
alternative to, the democratic political process.
This insight seems undeniable when one turns to the issue of inequality.
(b) Confronting Inequality. - All of the major problems facing American
metropolitan areas are generated, or at the very least exacerbated, by the
stark inequality that exists among the cities that constitute a region.
n200 Some of these cities have areas of concentrated poverty that are beset by
problems that many of their residents, like those around them, seek to escape.
Moving out is one form of escape. This escape produces more escape elsewhere,
and the centrifugal force thereby developed produces
"sprawl." Businesses and people moving to the area settle, if they can afford to do so,
"nicer" areas that
[*1821] this sprawl has created. More accurately, because of zoning laws, they settle
"nicer" areas - some commercial, some residential, some devoted to offices.
Transportation therefore becomes a problem. Because the exclusion of affordable
housing is one of the features that is understood to make an area
"nice," exclusionary zoning produces still more transportation problems as affordable
housing, if any exists at all, is driven further and further away from the
centers of economic growth. Cities in the region caught somewhere between
concentrated poverty and luxury embrace exclusionary zoning as a way to prevent
their schools and crime rates from falling to the level of the worst in the
region. Rules of taxation are relied on to accomplish the same objective. As
long as each city supports its own services from its own tax base, people can
make sure that
"their money" is spent only on themselves. Some localities profit from these zoning and
taxation rules. But elsewhere they foster housing shortages, underfunded
schools, economic decline, and crime. Unless this structure of inequality is
attacked directly, neither the region's transportation problems nor any other
problems targeted by a regional legislature are likely to be resolved. Yet
however indispensable, confronting inequality will not be a high priority on
many legislators' agendas. Building a legislative coalition that will addresses
the issue is therefore critical. Here again, regionalism in America can get
ideas from the European Union.
Given the relationship just sketched between inequality and the substantive
problems facing American metropolitan areas, the solution to regional
inequality must principally be found in the manner in which the key substantive
issues are addressed. Legislators have to learn - from, among others, those
legislators who already understand this point well - how inequality frustrates
solutions to whatever problem they care most about. But regional legislatures
also need ways to speed this learning process along. One way to do so is to
focus attention on a key feature of the current structure of inequality: the
property-based tax system. By basing revenues on the assessed values of
business and residential property, this system (still the most important
revenue source for local governments) enriches those areas already doing well
and impoverishes those most in need of resources. The regionalism literature
has largely focused on one method of revising this inequality-generating
structure - the Metropolitan Fiscal Disparities Act enacted in 1971 by the
Minnesota legislature for the Minneapolis-St. Paul region.
n201 The Minnesota statute makes forty percent of the increase in the region's
taxes on commercial and industrial property an
[*1822] areawide resource, one that is distributed to cities throughout the region
according to a formula based on their population and fiscal capacity.
n202 It is not surprising that this Minnesota scheme has been so widely discussed
in the regionalism literature.
n203 It is, after all, a rare example of a regional approach to revenue sharing in
the United States. But it has not been adopted anywhere else, and it has
significant defects. By basing redistribution on population as well as fiscal
capacity, it wrongly assumes that fiscal needs on a per-person basis are equal
across the region - that is, that only the numbers, and not the composition, of
the population matter.
n204 By only redistributing taxes imposed on commercial and industrial property, it
paradoxically aids some prosperous residential suburbs that have little such
property while draining resources from cities with both a large commercial tax
base and many poor people living in low-valued houses.
n205 As one commentator has put it, the formula has made the effort to redistribute
resources from rich municipalities to poor ones resemble that of a
"befuddled Robin Hood."
n206 Of course, Minnesota's formula could be revised to deal with these
deficiencies. But that would still leave another problem with the Minnesota
approach: the attack on fiscal inequality would continue to rely on a formula.
The European Union has two major devices for reducing economic and social
inequalities among its regions - structural funds and cohesion funds - and
neither is distributed simply by a formula. These funds have been established
to implement the European Union's stated goals of
"economic and social cohesion," and most precisely,
"reducing disparities between the levels of development of the various regions."
n207 This is a substantial effort: structural and cohesion funds constitute roughly
one-third of the European Union's budget.
n208 Of the two kinds of funds, structural funds are by far the more important.
"Structural funds" is a collective
[*1823] noun grouping together a number of separate funds designed to support
socioeconomic development programs in the European Union's poorest areas. What
is of interest at the moment is the manner in which they are distributed. There
are three phases to the process: the collection of the money necessary to
support the funds, the establishment of criteria governing their distribution,
and the development of specific projects, based on these criteria, that the
n210 Applicants design most of the projects. Some are
"community initiatives" that support cross-border, transnational, and interregional projects, among
others. These projects do not focus on the member nations as such; they target
regions within them. The primary recipients are those regions that have less
than seventy-five percent of the European Union's average gross domestic
n211 This project-based approach does more than simply direct the funds to the most
impoverished parts of the region more accurately than the formula used in
Minnesota. It has important political effects. It mobilizes efforts within the
member nations to articulate the most important needs of their distressed
areas; it provides information to contributors and recipients alike about what
these needs are; it fosters cross-border alliances for projects dealing with
similar problems; and it broadens political support by allocating funds to
specific areas rather than treating each nation as a single undifferentiated
n212 Each of these ingredients could increase support for addressing inequality
within a regional legislature.
Opposition to regionalism has not historically been voiced simply by those who
fear a reallocation of resources from their part of the region to poorer areas.
The political landscape is more complicated. Business leaders who live in
prosperous areas have often supported regional initiatives even though the
initiatives involved a reallocation of resources.
n213 These days many business leaders might be convinced by
[*1824] the evidence that the economic future of the most prosperous parts of the
region depends on the economic vitality of the region as a whole.
n214 Residents of declining cities, on the other hand, have often sought to defend
their local autonomy, and they have long been suspicious that, even if economic
growth for the region as a whole occurs, it will once again pass them by.
n215 A regional version of structural funds could draw support from each of these
constituencies. Those interested in fostering the region's economic growth and
those interested in enhancing the welfare of the region's poorest communities
could both see targeted projects as furthering their goals.
In seeking to build this coalition, it is important to divorce the task of
raising the necessary money from the task of allocating it. The Minnesota
formula performs these functions simultaneously. A project-based approach, by
contrast, enables residents of the region's poorest neighborhoods to be
specific about their priorities, thus helping people throughout the region
understand in concrete terms why funding these priorities is necessary. A focus
on projects also makes less certain who the recipients will be; even poor
neighborhoods in more prosperous cities can demonstrate that their projects
meet the established criteria for funding.
n217 One result of this approach might be to make the allocation process more
competitive. But it can simultaneously make it more cooperative: by
establishing criteria that favor interlocal projects, the funding mechanism can
forge connections between different neighborhoods and help spread a
"best practices" approach to specific kinds of problems.
n218 And it can stimulate the creation of public/private partnerships within and
between the neighborhoods to achieve similar results.
n219 The focus on neighborhoods within cities, rather than on the cities
themselves, would also add another dimension to regional politics. It would
[*1825] focus on city boundaries (qualified majority voting) and political positions
(party representation) by bringing to the surface the fact that divisions
within cities are often greater than divisions among them.
n220 As a result, interneighborhood alliances - like the organizing efforts
necessary to articulate priorities and the spreading of information that a
project-based approach requires - can foster a regional consciousness of
Two important questions remain: Where is the money to come from? And who will
select the projects deemed worthy of funding? The European Union finances its
projects with its own resources.
n221 The regional legislature should have its own resources as well. The critical
issue is not the size of these funds: in Europe, structural funds constitute a
very small percentage of the European Union's gross domestic product.
n222 But it is critical to focus regional efforts on its poorest neighborhoods and
to demonstrate this focus to those neighborhoods ("This project is supported by the Region"). Initially, most of the resources could come from contributions by the
region's cities in a manner that builds on, but modifies, the Minnesota
approach. It seems to me, however, that it is also important for the state to
add resources to the locally generated funds from the outset. These added
resources would help demonstrate that regionalism can further local objectives
rather than undermine them. Still, in the long run, neither of these sources of
revenue is likely to be adequate. The reason for this, in my view, is that the
entire system of local government finance - above all its reliance on the
property tax - is outdated. It is not just that the property tax is widely
resented, thought to be regressive, and provides a diminishing resource to many
cities dependent on it.
n223 The property tax highlights the importance of city boundaries by leading city
residents to think that the property located within city lines is
"theirs," no matter who owns it. This fixation on borders is less apparent for sales and
income taxes. Consumers often pay sales tax at malls not located where they
live, and employees typically earn income in a different city as well. It is
therefore easier to see why shopping and income generation are regional in
character and, as a result,
[*1826] why sales and income taxes should be levied and distributed on a regional
basis. This is not the place, however, to redesign local finance. The issue
cannot be dealt with in a paragraph. Besides, every region will have to focus
on revenue generation in its own way. My point is more limited: although there
is no reason to suspect that rethinking the property tax will be an early item
on a regional agenda, there is also no reason to treat the current structure of
local government finance as beyond revision.
The regional legislature should establish criteria for the allocation of
structural funds. But the task of selecting projects is more administrative
than legislative in character. In the European Union, the selection process
involves a complex negotiation between the member nations and the Commission.
n224 In the American metropolitan setting, it is important for the analogous
process to take place within the legislative structure itself. Information
about the projects selected - and about the process by which the selection is
made - should be widely publicized. One way to design a selection mechanism
within a regional legislature would be to establish a legislative committee
consisting of representatives from a wide variety of cities (excluding, of
course, the applicants themselves). Another would be to build a legislative
committee, like the presidency of the Council, on the principle of rotation.
However a legislative committee is organized, it is important to recognize that
there is nothing inappropriate about performing the task of allocating money in
a legislative setting: equally specific kinds of decisions were made by the
U.S. Congress early in its history.
3. The Establishment of a Regional Citizenship. - Since 1992, the citizens of
the European Union's member countries have also been citizens of the European
Every person holding the nationality of a Member State shall be a citizen of
the Union. Citizenship of the Union shall complement and not replace national
The meaning of this concept for the European Union has been the subject of
n227 But it has had concrete consequences. Citizens have been given the right
"to move and reside freely
[*1827] within the territory of the Member States";
n228 to vote and to run for office in municipal elections where they reside, even
though they are not citizens of the country in which the city is located;
n229 and to vote and stand as a candidate where they reside, regardless of their
nationality, in the elections for the European Parliament.
n230 Conferral of these rights is not the only device the European Union has used
to build links among the citizens of its member nations. The introduction of
Euro coins and notes in twelve of the fifteen member states in January, 2002,
is perhaps the most dramatic way in which European citizenship will become part
of the daily lives of most (although not all) of the European Union's
population. Commentators have suggested additional mechanisms for reinforcing
European citizenship - for example, allowing citizens to draft initiatives that
could be adopted in a Europe-wide vote.
No meaningful regional consciousness, let alone a regional citizenship, now
exists in American metropolitan areas. They would take time to develop even
after a regional legislature was organized. As I have already argued, regional
problems, not a regional citizenship, are the best starting place for the
political effort to establish a regional legislature in the United States.
Still, a regional citizenship is a worthwhile goal because it would help foster
the kind of regional thinking needed to address metropolitan problems. As in
Europe, a regional citizenship would not replace local citizenship but
complement it. A regional identity would be one more item in the complex bundle
of identities that people assume for themselves: people already are Americans
as well as from Watertown, Red Sox fans as well as fans of the local high
school team. Unlike many of these other aspects of identity, however, a
regional citizenship would emphasize not sameness but difference. Indeed, the
collection of the region's multiplicity into a common citizenship is likely to
be subversive of the emphasis on sameness that advocates of local autonomy have
long emphasized. Speaking about the European Union, Joseph Weiler says:
Constructing ... a new concept of citizenship around ... the fractured self of
the individuals who comprise ... [the member states] - citizenship as a
hallmark of differentity - could ... be a fitting project for Union architects.
That would be the major challenge to the conceptualization of European
citizenship. Especially, since accepting and celebrating the differentity of
individuals offers a new lease of life to the nation - nationality becoming a
legitimate rather than oppressive bond among the individuals comprising the
Much the same can be said about the relationship between regional and local
citizenship. Here, too, a concept of citizenship based on difference rather
than sameness could have consequences not only for the region as a whole, but
also for each of the cities that comprise it.
The organization and functioning of the regional legislature is an appropriate
vehicle for giving life to a concept of regional citizenship. I have already
mentioned some ingredients that could become part of this undertaking:
regionwide elections for some seats in the legislature, regionwide political
parties within the legislature, and the design of structural funds.
n234 Other ideas can be found in the ingredients of citizenship embraced by the
European Union. Consider, for example, the right established by the European
"reside freely within the territory of the Member States."
n235 Americans already have such a right to reside wherever they wish, one
constitutionally protected by the right to travel.
n236 But the concept could be given a different meaning in the United States than
the one adopted in Europe. As everyone knows, the ability to move within one's
own metropolitan region is now limited by exclusionary zoning and other
barriers to affordable housing. A meaningful right to move anywhere in the
region, one that was actually effective, would radically change the nature of
American metropolitan areas and, as a result, have an impact on every regional
issue mentioned in this Article.
The European Union's emphasis on voting and running for office can provide
another avenue for building a regional citizenship in the United States. This
could include not only the election of some legislators regionwide but also
regional initiatives and referenda like those that commentators have imagined
for Europe. Neither of these innovations, however, would have the impact of the
striking European idea of entitling nonnationals to vote and run for office in
municipal elections and in elections for the European Parliament. This form of
enfranchisement combines national identities in a single election, thereby
[*1829] destabilizing the unity of the
"self" that political self-determination has long been thought to represent.
"Our" representative in the European Parliament - like the government of
"our" city - includes voters and candidates traditionally thought of as outsiders,
"them." A similar erosion of the us/them distinction would be valuable in American
metropolitan areas as well. In earlier work, I suggested a regional voting
system that, unlike the European version, would not depend on residency:
Consider a plan ... in which everyone gets five votes that they can cast in
whatever local elections they feel affect their interest ("local" still being defined by traditional city boundaries). They can define their
interests differently in different elections, and any form of connection that
they think expresses an aspect of themselves at the moment will be treated as
adequate. Under such an electoral system, mayors, city council members, and ...
representatives in the regional legislature would have a constituency made up
not only of residents but of workers, shoppers, property-owners, the homeless,
and so forth. People are unlikely to vote in a jurisdiction they don't care
about, but there are a host of possible motives for voting (racial integration,
racial solidarity, redistribution of wealth, desire for gentrification, etc.).
When I suggested this plan, I did not connect the idea to a regional
citizenship, but my suggestion would be a way of fostering it. There also are
more limited ideas. A region could, for example, expand nonresident voting, now
limited in the United States to property owners, to those who work in the city
- not just office workers and business people but domestic workers and workers
in low-wage service jobs.
Formal voting rules are simply illustrative of the ways in which a regional
legislature could give meaning to the concept of a regional citizenship.
Individual cities could deliver specialized services to the region as a whole
(a city-run, but regionally funded, public hospital). Community meetings could
be organized not simply neighborhood by neighborhood but in pairs, so that
small groups of people from across the region could begin to explore what they
have in common and how to live with their differences. Large-scale public
events, such as a regional Fourth of July party, could be organized expressly
for the purpose of having people from across the region come together. The
[*1830] for these (and other) undertakings would be to make regional citizenship a
part of daily life and, as a result, to develop a regional consciousness. If
this were successful, a regional citizenship could facilitate the legislature's
ability to solve regional problems. And vice versa: the more effectively the
regional legislature addresses the region's problems, the more meaningful a
regional citizenship would be.
III. Conclusion: The Politics of Regionalism
The ideas that I have explored above may not be the most promising that the
European Union has to offer those of us concerned about American metropolitan
areas. The European Union's institutions are plentiful and complex and the
literature about them vast and sophisticated; many more possibilities for
American regionalism can be found in these sources. On the other hand, the
European Union may not be the best place to look for ideas. One might want to
turn instead to the organization of American homeowners' associations and
condominiums. After all, property owners who live in homeowners' associations
do not give up their
"sovereign" rights of private property. Yet they live within a private governmental
structure that controls not only collective property but also the ways in which
people use their own houses, and residents generally welcome both kinds of
n239 Are there aspects of this relationship between separateness and togetherness
that can provide ideas for American regionalism? One might also turn to the
considerable literature about innovative forms of contemporary business
organization that embrace decentralization. This literature explores a variety
of decentralized structures that cannot be categorized as either
command-and-control or protective of local autonomy.
n240 There is also the organization of so-called
"consociational democracies" - those democratic countries organized explicitly to deal with divided
n241 Consociational democracies organize
[*1831] national governments in a way that accommodates deeply felt subnational
loyalties. Perhaps American metropolitan areas can learn from them how to deal
with deeply felt subregional loyalties. The point of the argument I advanced in
Part II, in short, is not that the ideas I have chosen to discuss are the only
ways to rethink American regionalism. Ideas drawn from these other sources
might be better. What is important, it seems to me, is for us to get beyond the
notion that collective governance is, by its very nature, the enemy of
decentralized decisionmaking. We need to cultivate a broader institutional
Still, the question remains whether any regional institution, however cleverly
constructed, is politically viable. Many people think that the answer to this
"The suburbs won't agree to the creation of a regional institution with real
power," they say. In response, I want to point out that it is not the suburbs'
decision. A state legislature could create the kind of institution I described
in Part II tomorrow if a majority of representatives from across the state
agreed to do so. A majority vote by the state legislature, after all, is the
way that special purpose governments are now created. The Georgia Regional
Transportation Authority is simply the latest example of a regional body
established by a state legislative majority without asking for the consent of
suburban jurisdictions. Of course, suburban residents are represented in the
state legislature. They will - and they should - have a voice in the
decisionmaking. But there are many different kinds of suburbs, people within
the same suburb disagree with each other, there are other voices as well, and
unanimous consent is not the way democratic societies operate. If regionalism
is to get off the ground, state legislatures have to stop requiring a
referendum to set up regional institutions - particularly the kind of
referendum that enables a minority, even a single jurisdiction, to veto the
n242 This kind of decisionmaking process dooms regional proposals from the outset.
If a state legislature can create nonrepresentative, state-appointed regional
authorities by majority vote, it should be able to create a democratically
organized regional body in the same way.
The relevant political issue raised by the prospects for regionalism, then,
involves an inquiry into state legislative politics. Can a legislative majority
be constructed that would approve some kind of regional institution? No one
thinks that the task will be easy. But it is also not impossible. Farmers,
environmentalists, and Portland city leaders, each with their own agendas,
formed the coalition that brought metropolitan
[*1832] government to Portland. The support of the business community, the split
between rural Republicans and Republicans representing affluent suburbs, and
the influence of a sponsor from a low-tax-capacity suburb brought the
Metropolitan Council and the Fiscal Disparities Act to Minneapolis-St. Paul.
n243 Myron Orfield's success in convincing the legislature (if not the governor) to
support further regional initiatives in Minneapolis-St. Paul came from
representatives of low-tax-capacity suburbs, central cities, minorities,
good-government groups, and church groups, among others.
n244 All of these efforts, it should be emphasized, focused on creating a different
kind of institution than the one I described in Part II. The likelihood of
building a political coalition, I have argued, will be affected by the
organizational structure of the regional institution sought to be created. More
support for regionalism can be gained if it is seen as building a new form of
decentralized power rather than as simply one more example of centralization.
To change the popular understanding of regionalism in this way, it is important
to begin the effort to establish a regional legislature by focusing on an issue
- such as transportation or smart growth - that undeniably affects people
across the region and over which they have little control. Once a regional
legislature is established, detailed work can then be done - state by state -
to determine how to add related, but much more contentious, issues to the
initial agenda. Consider, for example, two of these issues: housing and
education. Cities in America do not currently have the authority to decide
their own housing policy. Although the precise legal situation differs from
state to state, cities in many states cannot, without state permission, enact
an inclusionary zoning ordinance that promotes affordable housing, establish
rent control, regulate condominium conversion, or impose a temporary moratorium
while they consider how to revise their land use laws to deal with rapidly
n245 Many cities' efforts to protect their residents' quality of life - against,
for example, hazardous waste, pesticides, and water pollution - have been
preempted by state and federal law.
n246 And cities can do nothing to prevent their housing stock from deteriorating as
people move farther and farther into the countryside,
[*1833] because they lack the authority, as well as the necessary collective
mechanism, to establish a growth boundary for their region. Restrictions on
city power such as these need to be considered together with the state-granted
authority to engage in exclusionary zoning to determine the best way to meet
the housing needs of metropolitan residents. A sufficient number of regional
legislators might well think that a combination of increases and decreases in
local power would produce a better housing policy for more local residents.
After all, a restriction on the authority to engage in exclusionary zoning
would still leave most zoning decisions in the hands of city officials.
The same kind of analysis can be applied to education. Local control of
education is a cherished ideal, but in fact state law controls much of
educational policy. The leading Supreme Court case celebrating local control of
the schools, San Antonio Independent School District v. Rodriguez,
n247 overlooked the fact, as Justice Marshall pointed out in dissent, that the
state prescribed required courses, decided which textbooks were acceptable,
established the qualifications for teachers, and determined the length of the
n248 Moreover, the scandalous inequality in school funding upheld in Rodriguez (but
later declared unconstitutional by many state courts) did not enhance the power
of poorly funded localities to improve the educational level of their schools.
n249 Of course, housing and education policy are complex issues, and it will take a
lot of work to forge a perspective that does not instinctively defend the
status quo. A regional legislature would enable metropolitan residents to do
this work together - an option currently unavailable to them.
Establishing an institution that furthers the conception of regionalism
advocated in this Article requires an increase in local power over issues such
as housing and education that counterbalances the decreases necessary to
advance regional interests. And this requires the state to decentralize more of
its own power to localities. Some people claim that the state simply will not
agree to do so. This position, however, fails to recognize how much influence a
region could have over state policy if it could overcome the intraregional
conflict that exclusionary zoning and unequal school funding now cause. If
popularly elected regional legislators could agree on a common position on
housing or educational policy, they - unlike the boards of directors that
[*1834] govern most MPOs - could become the vehicle for mobilizing political support
to decentralize power from the state to the local level. Metropolitan areas
make up eighty percent of the population of the country and a majority of the
population of most states. More than half of Massachusetts's 6.3 million people
live in the Massachusetts part of the Boston metropolitan area. Almost half of
the population of California lives in the Los Angeles metropolitan region;
adding only the San Francisco region brings the percentage to over two-thirds
of the state.
n250 Metropolitan economies dominate not only state economies but the economy of
the nation as a whole.
n251 The major hurdle impeding the decentralization of power is conflict within
metropolitan regions, not between the metropolitan regions and the state.
Metropolitan cities now rely on state-enacted legislation to gain power at the
expense of their neighbors; they could instead rely on their neighbors to get
the state to enact legislation in their common interest. State legislatures,
one should recall, are made up of locally elected representatives. Of course,
state officials - like the governor - would have to agree to the legislation,
and some state departments (say, the department of transportation) may oppose
it. But Governor Parris Glendening provided the leadership for
"smart growth" in Maryland, and Governor Roy Barnes led the effort to create the Georgia
Regional Transportation Authority.
n252 Governors could offer leadership on the creation of a regional legislature as
well. It is far too simplistic to assert that leaders of centralized
governments will always seek to hold on to power. Some leaders believe in
shifting power to decentralized units; some are against it but go along because
they feel it is in their best interest; some may be powerless to stop it.
n253 Rural legislators might also embrace the metropolitan areas' efforts if they
determined that doing so would better protect them from sprawl.
Even if there is enough political support to establish a regional legislature,
countless important issues remain. One of them is the definition of the region.
"Europe," the regional area is not self-defining. Because the data are so readily
available, the discussion in this Article has used census numbers to describe
American metropolitan areas. But there are many other ways to define the
region, and there is no reason for the census definition to be decisive. The
definition of who
[*1835] is included in the region is political and, as in Europe, it can change over
time. In my view, however, the region should be defined at the outset, unlike
the European Union, to be inclusive. It should accommodate as many of those
affected by regional decisions as possible so that, like a growth boundary, the
region can establish the parameters for people's decisions about how they
should live together.
n254 Indeed, the simultaneous establishment of a growth boundary around the region,
as defined, would help reinforce everyone's recognition that one can escape the
region's problems only by quitting one's job and moving to another part of the
An expansive definition of metropolitan regions would result in a number of
multistate regions. Regions that cross state lines are more common in the
United States than many people think (according to the census definition,
Boston and Portland, Oregon, are multistate regions, and the Chicago region
includes people from three states).
n255 Creating multistate regions is likely to be complicated, but there are already
multistate institutions in the United States, such as the Port Authority of New
York and New Jersey and the Tahoe Regional Planning Agency.
n256 Congress could encourage multistate regional legislatures and consent to the
interstate compacts necessary to bring them about, as it has for metropolitan
transportation planning organizations.
n257 Regions across the country could work together to encourage the necessary
state and federal support. In response to local and regional demands, the
European Union established a Committee of the Regions in 1992 to enable
representatives of subnational entities to have a voice in European Union
n258 The Committee of the Regions is required to be consulted on a range of issues,
particularly on matters that
"concern cross-border cooperation."
n259 Although the Committee of the Regions has not yet wielded much influence,
n260 a body similar to it might be more effective in the United States, given the
population and economic power of metropolitan areas and their location within a
single national boundary. Such an organization could serve other purposes as
well, such as facilitating the exchange of best practice ideas on common issues.
[*1836] Institutional innovations like the ones proposed in this Article are
important, but everyone knows that alone they are not enough. Every substantive
issue that metropolitan regions face is difficult, and considerable imagination
and effort - and a lot of time - will be required to make progress on any of
them. But I do not see how this effort can get underway unless representatives
of cities within the same metropolitan area begin to talk to each other. The
year 2001 was not only the fiftieth anniversary of the European Coal and Steel
Community. It was also the fiftieth anniversary of Route 128 here in the Boston
region, the highway that (together with the second-ring Interstate 495) has
contributed so much to the fragmentation of the metropolitan area.
n261 Whatever its implications for Europe itself, the European Coal and Steel
Community offers a better path to the future for metropolitan America than
Route 128. Fifty years from now, we should have made as much progress as the
Europeans have in the last fifty years to overcome interjurisdictional conflict.
n1. Anthony Downs, New Visions for Metropolitan America 170 (1994).
"public choice" literature has sought to defend the fragmentation of American metropolitan
areas using the privatized language of consumer choice. See, e.g., Vincent
Ostrom, Robert Bish
& Elinor Ostrom, Local Government in the United States (1988); Mark Schneider,
The Competitive City: The Political Economy of Suburbia (1989); Vincent Ostrom,
Charles M. Tiebout
& Robert Warren, The Organization of Government in Metropolitan Areas: A
Theoretical Inquiry, 55 Am. Pol. Sci. Rev. 831, 832 (1961). I have written a
lengthy response to this understanding of metropolitan America, Gerald E.
Frug, City Making:
Building Communities Without Building Walls (1999), as have many others, see, e.g., Peter Calthorpe
& William Fulton, The Regional City (2001); Downs, supra note 1; Peter Dreier,
& Todd Swanstrom, Place Matters: Metropolitics for the Twenty-First Century
(2001); Gary J. Miller, Cities by Contract: The Politics of Municipal
Incorporation (1981); Myron Orfield, Metropolitics: A Regional Agenda for
Community and Stability (1997); Neal R. Peirce, Citistates: How Urban America
Can Prosper in a Competitive World (1993); David Rusk, Cities Without Suburbs
(1993); Richard Briffault, Our Localism: Part II - Localism and Legal Theory,
90 Colum. L. Rev. 346, 415-35 (1990). For a historical account of urban fragmentation, see Thomas J. Sugrue, The
Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (1996). For
detailed accounts of the history of and political difficulties facing the
creation of regional governments in the United States, see Regional Politics:
America in a Post-City Age (H.V. Savitch
& Ronald K. Vogel eds., 1996) [hereinafter Regional Politics]; G. Ross Stephens
& Nelson Wikstrom, Metropolitan Government and Governance: Theoretical
Perspectives, Empirical Analysis, and the Future (2000).
n4. See, e.g., Edward A. Zelinsky, Metropolitanism, Progressivism, and Race,
98 Colum. L. Rev. 665, 694 (1998) (book review) (rejecting the need for regional government given that
"the states ultimately have ample authority over metropolitan areas"). For a call for alternatives to both regional government and the status quo,
see Todd Swanstrom, Ideas Matter: Reflections on the New Regionalism,
Cityscape: J. Pol'y Dev.
& Res., May 1996, at 5.
n5. The population of the United States in 1790 was 3.9 million people. Richard L.
Forstall, U.S. Dep't of Commerce, Population of States and Counties of the
United States: 1790-1990, at 4 (1996). There are eleven American metropolitan
regions with populations of that size or larger, twenty-three with more than
two million inhabitants, and fifty with more than one million inhabitants. U.S.
Census Bureau, U.S. Dep't of Commerce, Rankings and Comparisons: Population and
Housing Tables, at PHC-T-3 tbl.3 (2001), http://www.census.
gov/population/www/cen2000/tablist.html [hereinafter U.S. Census Bureau]
(ranking metropolitan areas by population and indicating changes in population
from 1990 to 2000).
n6. See John A. Powell, Addressing Regional Dilemmas for Minority Communities, in
Reflections on Regionalism 218, 219 (Bruce Katz ed., 2000).
n7. Victor Jones, Metropolitan Government 43, 46 (1942).
n8. This nineteenth-century expansion is described in id. at 122-35; R.D.
McKenzie, The Metropolitan Community 191-98 (1933); Paul Studenski, Nat'l Mun.
League, The Government of Metropolitan Areas in the United States 65-85 (1930);
Jon C. Teaford, City and Suburb: The Political Fragmentation of Metropolitan
America, 1850-1970, at 32-63 (1979); Kenneth T. Jackson, Metropolitan
Government Versus Suburban Autonomy: Politics on the Crabgrass Frontier, in
Cities in American History 442, 444-48 (Kenneth T. Jackson
& Stanley Schultz eds., 1972); Chester C. Maxey, The Political Integration of
Metropolitan Communities, 11 Nat'l Mun. Rev. 229, 229-30 (1922). For a general
overview of annexation law, see Frank S. Sengstock, Annexation: A Solution to
the Metropolitan Area Problem (1960).
n9. See McKenzie, supra note 8, at 336 tbl.ix.
n10. Jackson, supra note 8, at 446-47.
n11. Id. at 449.
n12. Id. at 448-50; Studenski, supra note 8, at 87-88.
n13. See Teaford, supra note 8, at 40-47 (discussing annexations in Cleveland and
Chicago); George Herbert McCaffrey, The Political Disintegration and
Reintegration of Metropolitan Boston (1937), in A Collection of Three Papers on
the History and Present Characteristics of the Region 15-18 (Boston Chamber of
Commerce ed., 1947) (discussing Boston); Allen M. Wakstein, Boston's Search for
a Metropolitan Solution, 38 J. Am. Inst. Planners 285, 287-91 (1972) (same).
n14. See Studenski, supra note 8, at 88-90; Teaford, supra note 8, at 9-31.
n15. Studenski, supra note 8, at 79-82; Jackson, supra note 8, at 451-52.
n16. Jackson, supra note 8, at 451-52 (discussing the experiences of Philadelphia,
St. Louis, and New Orleans); id. at 448 (discussing Brooklyn, where residents
participated in a nonbinding, advisory vote on the question of annexation).
n17. See Maxey, supra note 8, at 243.
Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).
Id. at 178.
Id. at 178-79; see also Maxey, supra note 8, at 243 (discussing Hunter). One reason that
these annexations were not thought to violate the principle that governments
should have the consent of the governed was the concept of implied consent:
"When people settle on the edge of a growing town or city they must be presumed
to know that they are liable to be taken into the city by the legislature
whenever the legislature thinks the public welfare would be served by doing so." Studenski, supra note 8, at 76 (quoting Maryland's Chief Justice Harlan)
(internal quotation marks omitted).
n21. See Carl Abbott, The New Urban America: Growth and Politics in Sunbelt Cities
54-57 (1987); John C. Bollens
& Henry J. Schmandt, The Metropolis: Its People, Politics, and Economic Life
408-21 (1965); Rusk, supra note 3, at 12-14.
n22. See Richard Bigger
& James D. Kitchen, How the Cities Grew: A Century of Municipal Independence and
Expansion in Metropolitan Los Angeles 155-94 (1952) (discussing Los Angeles);
John J. Harrigan, Political Change in the Metropolis 315 (4th ed. 1989)
(Nashville); Bert Swanson, Jacksonville: Consolidation and Regional Governance,
in Regional Politics, supra note 3, at 234 (Jacksonville).
n23. See John D. Wenum, Annexation as a Technique for Metropolitan Growth: The Case
of Phoenix, Arizona (1970).
n24. See Advisory Comm'n on Intergovernmental Relations, The Challenge of Local
Governmental Reorganization 85 (1974) [hereinafter The Challenge of Local
Governmental Reorganization] (discussing Houston and Oklahoma City); Bollens
& Schmandt, supra note 21, at 414-16 (same); Howard N. Rabinowitz, Growth Trends
in the Albuquerque SMSA, 1940-1978, 18 J. West 62 (1979) (Albuquerque).
n25. The Indiana legislature created Unigov, thereby combining Indianapolis and its
suburbs. William Blomquist
& Roger B. Parks, Fiscal, Service, and Political Impacts of Indianapolis-Marion
County's Unigov, 25 Publius: J. Federalism, Fall 1995, at 37, 40. The Georgia
legislature expanded the territory of Atlanta (although first, as in New York,
there was a nonbinding referendum). Abbott, supra note 21, at 178. Similarly,
in Canada, the provincial legislature created
Metropolitan Toronto. Harrigan, supra note 22, at 320. Houston expanded by acting on its own. Bollens
& Schmandt, supra note 21, at 414-16 (discussing Houston's annexation of
surrounding unincorporated areas without a vote by occupants of those areas).
Metropolitan Dade County (greater Miami) was created by a closely divided
countywide vote. Id. at 460; Harrigan, supra note 22, at 319. In November 2000,
voters supported a merger of Louisville, Kentucky, with Jefferson County;
Greater Louisville is now the twenty-third largest city in the nation
(Louisville alone was the sixty-fourth largest). Cyndy Liedtke Hogan,
Louisville, Jefferson County Vote To Merge Governments, Nation's Cities Wkly.,
Nov. 20, 2000, at 3. For an example of annexation endorsed only by the
inhabitants of the annexed territory, see
Moorman v. Wood, 504 F. Supp. 467 (D.C. Ky. 1980), which upheld a Kentucky law permitting annexation of parts of contiguous towns
by other towns, provided that the residents of the annexed territory agreed.
For an analysis of these examples of metropolitan consolidation and of other
forms of centralized government, see Stephens
& Wikstrom, supra note 3, at 68-104.
n26. See Abbott, supra note 21, at 175-84; Thomas R. Dye, Urban Political
Integration: Conditions Associated with Annexation in American Cities, 8
Midwest J. Pol. Sci. 430, 435-39 (1964). The need for water has long been an
important factor driving the desire for annexation. Studenski, supra note 8, at
105-10 (describing the role of this factor in the nineteenth century); see also
& Kitchen, supra note 22, at 164-76 (on Los Angeles). But other services have
also had an important influence. I.M. Barlow, Metropolitan Government 33
(1991); Studenski, supra note 8, at 111-35. So has the general desire for
economic growth. See Abbott, supra note 21, at 176-78. On city-suburban
attitudes generally, see Advisory Comm'n on Intergovernmental Relations,
Factors Affecting Voter Reactions to Governmental Reorganization in
Metropolitan Areas 26-28 (1962) [hereinafter Factors Affecting Voter Reactions]
(arguing that city-suburb convergence is more common than city-suburb splits).
n27. For a summary of annexation activity in the different regions of the United
States from 1950 to 1990, see David Rusk, Baltimore Unbound: A Strategy for
Regional Renewal 31-35 (1996).
n28. Jackson, supra note 8, at 444.
n29. Id. at 446.
n30. See, e.g., Jones, supra note 7, at 85 ("The city-county of Philadelphia, for a few years after the consolidation of
1854, was the closest approximation to a metropolitan government we have had in
the United States... . Since that time, however, the population of the suburbs
has increased rapidly ... ."). Houston, San Diego, Phoenix, and Nashville - among many others - contain
less than 50% of each area's metropolitan population, while San Antonio (72%)
and Jacksonville (67%) contain the largest percentages of the populations of
all metropolitan regions in the country. Andrew Sancton, Policymaking for Urban
Development in American and Canadian Metropolitan Regions, in Metropolitan
Governance: American/Canadian Inter-governmental Perspectives 2-3 (Donald N.
& Andrew Sancton eds., 1993) [hereinafter Metropolitan Governance]. Compare U.S.
Census Bureau, supra note 5, at PHC-T-5 tbl.1 (showing populations of
incorporated cities of 100,000 or more residents), with id. at PHC-T-3 tbl.1
(showing populations of metropolitan areas). Even the fifty central cities that
most aggressively annexed neighboring territory from 1960 to 1990 saw their
share of the metropolitan population decrease from 60% to 43%. David Rusk, The
Exploding Metropolis: Why Growth Management Makes Sense, 16 Brookings Rev. 13,
n31. Rusk, supra note 3, at 89. Although in recent years Rusk seems to have given
up hope that annexation will produce regional governments, Rusk, supra note 30,
at 14 ("Annexation strategies have been overwhelmed by the sprawl-inducing impact of
the federal interstate highway system and the networks of state highways
supporting it."), he remains enamored of centralized government decisionmaking, see David
Rusk, Inside Game/Outside Game: Winning Strategies for Saving Urban America
324-26 (1999) (noting that
""where it's at' is state legislatures").
n32. See Dreier, Mollenkopf
& Swanstrom, supra note 3, at 92-132.
"Greater Los Angeles is a five-county region containing a population of more
than 14 million, a land area nearly as large as Ohio, and a gross regional
product that, were the region an independent country, would rank 12th largest
in the world." Alan L. Saltzstein, Los Angeles: Politics Without Governance, in Regional
Politics, supra note 3, at 51. Metropolitan Chicago has grown geographically by
46% in the last twenty years, although the area's population has grown by only
4%. Paul Glastris with Dorian Friedman, A Tale of Two Suburbias, U.S. News and
World Rep., Nov. 9, 1992, at 32, 34. Half of the ten largest metropolitan areas
in the United States (New York, Chicago, Philadelphia, Boston, and Washington)
cross state lines. Bollens
& Schmandt, supra note 21, at 23; Mark I. Gelfand, Development Policy in Greater
Metropolitan Governance, supra note 30, at 13, 14 (describing Boston's Consolidated Metropolitan Statistical
"extending over five counties in eastern Massachusetts and part of one in
southern New Hampshire"). For a review of state laws that have sought to limit this growth over the
past twenty years, see Douglas R. Porter, State Framework Laws for Guiding
Urban Growth and Conservation in the United States,
13 Pace Envtl. L. Rev. 547 (1996). For a comparative study of metropolitan growth, see William Fulton, Rolf
Pendall, Mai Nguyen
& Alicia Harrison, Who Sprawls Most? How Growth Patterns Differ Across the U.S.
(Ctr. on Urban
& Metro. Policy, Brookings Inst., Survey Series, July 2001),
n34. On the opposition in the South and West, see Abbott, supra note 21, at 182-84;
Wenum, supra note 23, at 103-04. For a detailed account of a recent failed
attempt to create a regional government, see William Lyons
& John M. Scheb II, Saying
"No" One More Time: The Rejection of Consolidated Government in Knox County,
Tennessee, 30 St.
& Loc. Gov't Rev. 92 (1998).
n35. In America today, suburban power is usually seen ... as a vehicle for the
protection of home and family and of private property. This privatized picture
of suburban life not only has helped convince the states to grant these cities
significant power over zoning, education, and resource allocation but has
helped persuade the courts to defend their power against attacks by insiders
and outsiders alike. Moreover, local government law has enabled these cities to
pursue their own self-interest regardless of the impact on their neighbors
because it has adopted a privatized conception of the boundary lines between
the central city and its suburbs - and between the suburbs themselves. Like the
boundary lines that separate one private property-owner from another, city
borders have become a vehicle for dividing us from them, our problems from
their problems, our money from their money, our future from their future. Those
who can afford it can therefore assure themselves of better schools, safer
streets, and more homogeneous neighborhoods simply by moving from one side of
the line to the other.
Frug, supra note 3, at 7-8. On the role of this attitude in generating opposition to
annexation, see Bollens
& Schmandt, supra note 21, at 420-22; Jackson, supra note 8, at 454-55.
n36. Jackson, supra note 8, at 449-50; cf.
Frug, supra note 3, at 176 (describing the nineteenth-century vision that animated the
creation of city services). To be sure, cities sometimes rejected annexation on
just these grounds. McCaffrey, supra note 13, at 18 (noting that Boston
rejected seven annexations after 1873); Wakstein, supra note 13, at 290.
Frug, supra note 3, at 115-42.
n38. See Jones, supra note 7, at 127.
Urban growth in the central city was ... channeled along lines of least
resistance rather than optimum efficiency, creating a complex and highly
irregular pattern of appendages, enclaves, exclaves, and other misshapen
oddments ... . Looking over a set of maps showing the political boundaries of
American cities becomes a revealing exercise in geopolitical science fiction!
Edward W. Soja, The Political Organization of Space 46 (Ass'n of Am.
Geographers, Comm'n on Coll. Geography Resource Paper No. 8, 1971).
n39. League of Women Voters Educ. Fund, Supercity/Hometown, USA: Prospects for
Two-Tier Government 25 (1974); see also Factors Affecting Voter Reactions,
supra note 26, at 2 (noting that
"the possible implication of the reorganization proposal for a colored racial
minority concentrated mainly in the central city is cited as an important
negative factor" in considering regional reorganizations); Teaford, supra note 8, at 180-81
(describing opposition by blacks in northern industrial centers to the
"federation with white suburbia"); Powell, supra note 6, at 218-23.
n40. See Abbott, supra note 21, at 55, 175-84; Dye, supra note 26, at 439-42.
n41. The early history of the two-tier concept is described in Studenski, supra
note 8, at 367-87, and Teaford, supra note 8, at 105-70.
n42. Metro. Dist. Comm'n, Report of the Metropolitan District Commission to the
Massachusetts Legislature 6 (Boston, Wright
& Potter Printing Co. 1896). Shortly after the publication of the report, the
British Parliament transformed the recently created London County Council into
a two-tier government, a process the Metropolitan District Commission was
following closely. See id. at 61-65. For a history of London's effort to
establish a two-tier government, see Barlow, supra note 26, at 48-97, 289-92.
Metro. Dist. Comm'n, supra note 42, at 12.
n44. Id. at 36-37.
n45. Id. at 37.
n46. Studenski, supra note 8, at 371; Teaford, supra note 8, at 107.
Metro. Dist. Comm'n, supra note 42, at 6. The very definition of the region derived from this perspective:
the region was restricted to the cities that contained
"the homes of practically all of the business and professional men who find
occupation either in Boston or in the suburban districts." Id. at 5-6.
n48. Teaford, supra note 8, at 105-70; see also Studenski, supra note 8, at 367-68,
372-87; Thomas H. Reed, Dual Government for Metropolitan Regions, 16 Nat'l Mun.
Rev. 118, 118-21 (1927) (discussing St. Louis); Notes on Municipal Affairs, 23
Am. Pol. Sci. Rev. 718, 718-19 (1929) (discussing Pittsburgh).
n49. Teaford, supra note 8, at 111-22.
n50. The politics of the effort to adopt two-tier government in the 1920s is well
described in id. at 119-20, 128-32, 135-48, 163-70.
n51. The Pittsburgh plan won sixty-eight percent of the region's vote, but lost
because of the supermajority requirements. Studenski, supra note 8, at 377-78,
382; Teaford, supra note 8, at 167.
n52. Teaford, supra note 8, at 175-86.
n53. Reed, supra note 48, at 124-25; see also Jones, supra note 7, at 146-51
(recognizing two-tier government as a step toward centralized government only a
page after attempting to frame appropriate regional functions in technical,
n54. See Advisory Comm'n on Intergovernmental Relations, Alternative Approaches to
Governmental Reorganization in Metropolitan Areas 12-16 (1962); The Challenge
of Local Governmental Reorganization, supra note 24, at 8-15; Advisory Comm'n
on Intergovernmental Relations, Governmental Functions and Processes: Local and
Areawide 80-99 (1974) [hereinafter Governmental Functions and Processes];
Advisory Comm'n on Intergovernmental Relations, Performance of Urban Functions:
Local and Areawide 5-6 (1963). The ACIR, a federal interagency body created in
1959, was abolished in 1996. See Bruce D. McDowell, Advisory Commission on
Intergovernmental Relations in 1996: The End of an Era, Publius: J. Federalism,
Spring 1997, at 111, 111-12.
n55. The Challenge of Local Governmental Reorganization, supra note 24, at 8-15.
n56. Id. at 151; Governmental Functions and Processes, supra note 54, at 19.
n57. See, e.g., Comm. for Econ. Dev., Reshaping Government in Metropolitan Areas
19, 44-46 (1970); League of Women Voters Educ. Fund, supra note 39, at 90-129
(embracing every possible division of functions).
n58. See Downs, supra note 1, at 179-82; Orfield, supra note 3, at 99-103; Peirce,
supra note 3, at 319; Rusk, supra note 27, at 91-101; Stephens
& Wikstrom, supra note 3, at 167-74.
n59. Neal Peirce has most notably carried on this tradition, see Peirce, supra note
3, at 316-22, but others gesture toward it as well by emphasizing the
interdependence of suburban and central city economies. See, e.g., Larry C.
& William R. Barnes, Nat'l League of Cities,
"All in it Together": Cities, Suburbs and Local Economic Regions (1993); H.V. Savitch, David
Collins, Daniel Sanders
& John P. Markham, Ties That Bind: Central Cities, Suburbs, and the New
Metropolitan Region, 7 Econ. Dev. Q. 341, 341-52 (1993); Richard Voith, City
and Suburban Growth: Substitutes or Complements?, Bus. Rev.: Fed. Res. Bank of
Phila., Sept.-Oct. 1979, at 21, 21-31.
n60. See generally Comm. on Improving the Future of U.S. Cities Through Improved
Metro. Area Governance, Nat'l Research Council, Governance and Opportunity in
Metropolitan America (Alan Altshuler, William Morrill, Harold Wolman
& Faith Mitchell eds., 1999) [hereinafter Governance and Opportunity in
Metropolitan America] (describing the socioeconomic disparity in many
metropolitan areas and focusing on that disparity as a primary rationale for
change). A similar agenda is shared by writers such as Anthony Downs, Myron
Orfield, and David Rusk, although the emphasis among the elements varies. See,
e.g., Rusk, supra note 31, at 324-30 (emphasizing the importance of housing
desegregation over fiscal equity). Even Neal Peirce calls for fiscal equity.
Peirce, supra note 3, at 310-13.
n61. Rusk, supra note 27, at 94.
n62. See Orfield, supra note 3, at 157-60; Rusk, supra note 27, at 50-53; Rusk,
supra note 31, at 153-77; Carl Abbott, The Portland Region: Where City and
Suburbs Talk to Each Other - and Often Agree, 8 Housing Pol'y Debate 11 (1997).
In addition to its planning functions, Metro also provides a few public
services (the zoo, solid waste disposal, tourism development). Arthur C.
Nelson, Portland: The Metropolitan Umbrella, in Regional Politics, supra note
3, at 253, 253.
n63. See Orfield, supra note 3, at 104-05, 128-55, 173-80; Rusk, supra note 27, at
68-71; Rusk, supra note 31, at 222-23, 238-44, 246-48; John J. Harrigan,
Minneapolis-St. Paul: Structuring Metropolitan Government, in Regional
Politics, supra note 3, at 206-28; Judith A. Martin, In Fits and Starts: The
Twin Cities Metropolitan Framework, in
Metropolitan Governance, supra note 30, at 205-43. Since 1994, the Metropolitan Council, in addition to its
planning authority, has operated the metropolitan transit and sewer systems.
See Orfield, supra note 3, at 133. For further discussion of the
Minneapolis-St. Paul revenue-sharing system, see infra pp. 1821-22.
n64. For an account of the passage of Minnesota's 1971 tax-sharing bill, see
Orfield, supra note 3, at 143-44; for an argument for its expansion, see id. at
144-49. For analyses of Portland's income disparity, see Myron Orfield,
Portland Metropolitics: A Regional Agenda for Community and Stability 24-40
(1998); Rusk, supra note 31, at 164-68.
n65. Although regionally imposed integration of housing is most strongly advocated
by David Rusk, see Rusk, supra note 31, at 327-28 (urging the general adoption
of Montgomery County, Maryland's Moderately Priced Dwelling Unit Ordinance),
id. at 178-200 (discussing the system used in Montgomery County), most
equity-based proposals include it, see Downs, supra note 1, at 164; Orfield,
supra note 3, at 17-18, 81-83; cf. Peirce, supra note 3, at 303-06 (advocating
multiculturalism without a focus on housing).
n66. Increased attention to transportation issues is also a common theme. See,
e.g., Downs, supra note 1, at 156-61; Orfield, supra note 3, at 98. This is the
element that, at the moment, seems the most likely to be achieved in
Minneapolis-St. Paul. See David Peterson
& Dan Wascoe Jr., Ventura Names New Met Council: 13 of the 16 Are Newcomers,
Many of Whom Favor Mass Transit, Minneapolis Star Trib., Apr. 15, 1999, at B1.
n67. The authority of the Metropolitan Council took years to put into place; it was
not until 1988, for example, that direct elections became the method of
choosing its membership. For an analysis of the operation of Toronto's
Metropolitan Council, see Barlow, supra note 26, at 185-219; Bollens
& Schmandt, supra note 21, at 477-88; Frances Frisken, Planning and Servicing
the Greater Toronto Area: The Interplay of Provincial and Municipal Interests,
Metropolitan Governance, supra note 30, at 153-204. For its demise, see Rusk, supra note 31, at 148-50;
William Walker, Megacity, Toronto Star, Apr. 22, 1997, at A1; Editorial,
Unified Toronto Best Bet for Future, Toronto Star, Apr. 22, 1997, at A22;
Michael R. Garrett, Building the New City of Toronto (July 1999), available at
n68. For a history of the London County Council and its predecessor and successor,
see Barlow, supra note 26, at 48-97, 289-92; for a discussion of its
replacement, see Kathy Watson, Capital Vision, Geographical, May 1998, at 34,
36-39; The White Paper: A Mayor and Assembly for London (1998), available at
& Schmandt, supra note 21, at 470. For an analysis of Miami-Dade County's
two-tier system, see id. at 459-71; Genie Stowers, Miami: Experiences in
Regional Government, in Regional Politics, supra note 3, at 185-205. For a more
recent history of the conflict, see Annette Steinacker, Prospects for Regional
Governance: Lessons from the Miami Abolition Vote, 37 Urb. Aff. Rev. 100
(2001); By Wide Margin, Miami Voters Preserve City, N.Y. Times, Sept. 5, 1997,
at A30; Mireya Navarro, Rich Areas in Miami Talk Secession, N.Y. Times, Dec.
16, 1996, at A12. The system in Miami-Dade County is unlike the other two-tier
governments described in this Article because, although it is a two-tier system
for the thirty-one municipalities within the county, about half of the
population resides in the unincorporated area of the county, and, for that
area, the county government is the only government. See About the County:
Population, http://www.co.miami-dade.fl.us/info/about/population.htm (last
visited Apr. 7, 2002).
n70. See Robert C. Wood, A Division of Powers in Metropolitan Areas, in Area and
Power: A Theory of Local Government 53, 63 (Arthur Maass ed., 1959).
n71. Barlow, supra note 26, at 196 (discussing Toronto); Orfield, supra note 3, at
13 (discussing Minneapolis-St. Paul).
n72. Barlow, supra note 26, at 58, 65-66.
n73. See Carl Abbott, Portland: Planning, Politics, and Growth in a
Twentieth-Century City 262 (1983). One county rejected the creation of the
metropolitan district but was included over its objection because a majority of
the entire region approved. This result was challenged in, but upheld by,
Reilley v. Secretary of State, 598 P.2d 323, 331 (Or. Ct. App. 1979). See also Bollens
& Schmandt, supra note 21, at 460 (noting that the slim margin in Dade County
required a heavy affirmative majority in the City of Miami).
n74. Portland's Metro does not include the entire regional area, Nelson, supra note
62, at 266, but suburbanization beyond existing jurisdictional borders has been
even more significant in Minneapolis-St. Paul, see Martin, supra note 63, at
218-28; in Toronto, Frisken, supra note 67, 155-58; and in London, Barlow,
supra note 26, at 72-87. Miami-Dade County is such an integral part of the
greater South Florida region that one important study does not even discuss the
Miami-Dade County metropolitan government in its analysis of the region's
problems. See Myron Orfield, South Florida Metropolitics: A Regional Agenda for
Community and Stability (1998).
n75. For a history of special districts and public authorities, see Studenski,
supra note 8, at 256-341. The most comprehensive analyses of their role in
municipal government are Advisory Comm'n on Intergovernmental Relations, The
Problem of Special Districts in American Government (1964) [hereinafter The
Problem of Special Districts]; John C. Bollens, Special District Governments in
the United States (1957); Nancy Burns, The Formation of American Local
Governments: Private Values in Public Institutions (1994); Kathryn A. Foster,
The Political Economy of Special-Purpose Government (1997). See also Advisory
Comm'n on Intergovernmental Relations, Alternative Approaches to Governmental
Reorganization in Metropolitan Areas 49-58 (1962) [hereinafter Alternative
Approaches to Governmental Reorganization]; Advisory Comm'n on
Intergovernmental Relations, Regional Decisionmaking: New Strategies for
Substate Districts 19-47 (1973) [hereinafter Regional Decisionmaking]; Bollens
& Schmandt, supra note 21, at 440-52; Scott A. Bollens, Examining the Link
Between State Policy and the Creation of Local Special Districts, 18 St.
& Loc. Gov't Rev. 117 (1986); G. Ross Stephens
& Nelson Wikstrom, Trends in Special Districts, 30 St.
& Loc. Gov't Rev. 129 (1998). On the role of the federal government in fostering
special districts, see Regional Decisionmaking, supra, at 21-22.
n76. Foster, supra note 75, at 21-22, 142-43, 220-21; The Problem of Special
Districts, supra note 75, at 54-57.
n77. On the formation of special districts and public authorities, see Regional
Decisionmaking, supra note 75, at 24-25, 36-38; Bollens
& Schmandt, supra note 21, at 443-44. On property qualifications for voting, see
Ball v. James, 451 U.S. 355 (1981);
Burns, supra note 75, at 12.
n78. On interstate districts and authorities, see Regional Decisionmaking, supra
note 75, at 29-30; John M. Winters, Interstate Metropolitan Areas (1962).
n79. See Regional Decisionmaking, supra note 75, at 38-42.
n80. Public choice theorists, who oppose regional government, see supra note 3,
favor the establishment of special districts and public authorities, see, e.g.,
Foster, supra note 75, at 35-41; Ostrom, Tiebout
& Warren, supra note 3, at 835-37.
n81. In the thirty years from 1962 to 1992, the number of special districts and
public authorities in metropolitan areas increased from 5411 to 13,614.
& Wikstrom, supra note 75, at 129. An important recent example is the Georgia
Regional Transportation Authority, created by the Georgia state legislature in
1999. Georgia Regional Transportation Authority Act,
Ga. Code Ann. 50-32 (Supp. 2001). For an analysis of this example, see Arthur C. Nelson, New Kid
in Town: The Georgia Regional Transportation Authority and Its Role in Managing
Growth in Metropolitan Georgia,
35 Wake Forest L. Rev. 625 (2000).
n82. The Problem of Special Districts, supra note 75, at 64-84; Bollens, supra note
75, at 88-92, 247-63; Bollens
& Schmandt, supra note 21, at 444;
Burns, supra note 75, at 11-13; Foster, supra note 75, at 218-33; Studenski, supra note 8,
at 339-41; Victor Jones, The Organization of a Metropolitan Region,
105 U. Pa. L. Rev. 538, 545 (1957); Stephens
& Wikstrom, supra note 75, at 136-37. For the ACIR's effort to limit special
districts and public authorities, see Governmental Functions and Processes,
supra note 54, at 46-47; The Problem of Special Districts, supra note 75, at
73-84; Advisory Comm'n on Intergovernmental Relations, Urban America and the
Federal System 5, 87-89 (1969) [hereinafter Urban America and the Federal
System]. In 1987, under the influence of public choice theory, the ACIR
abandoned its opposition to special districts and public authorities. See
Advisory Comm'n on Intergovernmental Relations, The Organization of Local
Public Economies 55-56 (1987) ("The Commission finds no a priori reason to reduce the number of special-purpose
governments or to restrict their growth arbitrarily.").
n83. The incidence of these governments varies widely in the United States, ranging
from Houston, with 665 special districts and public authorities, to Monroe,
Louisiana, with none; the median number is 23. Foster, supra note 75, at
121-23. The Pittsburgh region, for example, has 129 municipalities and 194
special districts and public authorities, with no regional body having
authority over the 323 different entities. Louise Jezierski, Pittsburgh:
Partnerships in a Regional City, in Regional Politics, supra note 3, at 159,
160. Coordination problems are, along with the impact on democratic
accountability, the arguments advanced by virtually every critic of special
districts. See authorities cited supra note 82.
n84. The Problem of Special Districts, supra note 75, at 67-68.
n85. Foster, supra note 75, at 148-88. One reason - although only one reason - for
this increased cost is that bond financing is more expensive for special
districts and public authorities than it is for general governments. The
Problem of Special Districts, supra note 75, at 66-67.
n86. Foster, supra note 75, at 213-14.
n87. The critical literature refers to this objection only in terms of the impact
of special districts and public authorities on annexation, see, e.g., The
Problem of Special Districts, supra note 75, at 70; Studenski, supra note 8, at
339, but once centralization is rejected as the only alternative to the status
quo, the argument can be formulated more generally.
n88. On voluntary agreements, see Alternative Approaches to Governmental
Reorganization, supra note 75, at 26-32; The Challenge of Local Governmental
Reorganization, supra note 24, at 29-52; Bollens
& Schmandt, supra note 21, at 371-99; Studenski, supra note 8, at 43-64; Samuel
& Mark S. Rosentraub, Dimensions of Interjurisdictional Cooperation, 63 J. Am.
Plan. Ass'n 205, 207 (1997).
n89. The Challenge of Local Governmental Reorganization, supra note 24, at 52.
n91. Alternative Approaches to Governmental Reorganization, supra note 75, at 31.
n92. The definitive analysis of the Lakewood Plan is Miller, supra note 3. For a
favorable view of the Lakewood Plan, written from a public choice perspective,
see Robert L. Bish
& Vincent Ostrom, Understanding Urban Government: Metropolitan Reform
Reconsidered 59-61 (1973).
n93. Miller, supra note 3, at 22. Miller emphasizes the importance of tax savings
offered by the adoption of a mechanism for the sharing of sales tax revenues,
which thereby lowered the need for property taxes. Id. at 76-82. That
ingredient, although important historically, is not necessary to generate
support for a Lakewood-type contracting scheme.
n94. Mike Davis, City of Quartz 166 (1990).
n95. Alternative Approaches to Governmental Reorganization, supra note 75, at 31;
see also Urban America and the Federal System, supra note 82, at 97-98.
n96. See generally Symposium, New Regionalism and Its Policy Agenda, 32 St.
& Loc. Gov't Rev. 158 (2000). Sheryll Cashin offers a definition of
"new regionalism" that includes all contemporary proposals for regional solutions to
metropolitan problems: new regionalism
"focuses primarily on achieving regional cooperation and limited-purpose
regional government, rather than on creating regional governments that supplant
fragmented local governments." Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored
Quarter: Addressing the Barriers to New Regionalism,
88 Geo. L.J. 1985, 1989 n.11 (2000).
n97. Roger B. Parks
& Ronald J. Oakerson, Regionalism, Localism, and Metropolitan Governance:
Suggestions from the Research Program on Local Public Economies, 32 St.
& Loc. Gov't Rev. 169, 169 (2000).
n98. H.V. Savitch
& Ronald K. Vogel, Paths to New Regionalism, 32 St.
& Loc. Gov't Rev. 158, 159-63 (2000).
n99. Id. at 161.
n100. Id. at 164.
n101. See, e.g., Dep't of Env't, Transp.
& the Regions, Building Partnerships for Prosperity: Sustainable Growth,
Competitiveness and Employment in the English Regions (1997) (on file with the
Harvard Law School Library) (setting forth a decentralization plan for the
n102. See, e.g., The Challenge of Local Governmental Reorganization, supra note 24,
at 51-52 (discussing voluntary agreements); Bollens
& Schmandt, supra note 21, at 447-52 (discussing special districts and public
authorities). For a recent argument in this vein, see Thomas Bender, The New
Metropolitanism and the Pluralized Public, Harv. Design Mag., Winter/Spring
2001, at 70. For two summary statements of the current options available for
metropolitan government in America, see David B. Walker, From Metropolitan
Cooperation to Governance, in Forms of Local Government: A Handbook on City,
County, and Regional Options 151 (Roger L. Kemp ed., 1999), and Richard Sybert,
Models of Regional Governance, in Forms of Local Government, supra, at 172.
n103. An important clarification is necessary here: most American public schools are
run by school districts, a kind of special district. See Bollens
& Schmandt, supra note 21, at 149 fig.6.4; Bureau of the Census, U.S. Dep't of
Commerce, 1 1992 Census of Governments, Government Organization 27 (1994). In
some parts of the country, these school districts have operated like regional
governments for the educational system and, in fact, have furthered regional
equity. Their overwhelming impact, however, has been the opposite: like city
governments themselves, they have fractured the metropolitan area into zones
divided along lines of class, race, and ethnicity. See generally Gary Orfield,
Susan E. Eaton
& the Harvard Proj. on Sch. Desegregation, Dismantling Desegregation: The Quiet
Reversal of Brown v. Board of Education (1996) (discussing the impact of
fragmentary school districting on desegregation efforts in a number of case
studies). Moreover, the separation of education from other related concerns -
such as housing - has frustrated the solution to educational problems and other
urban problems alike. See
Frug, supra note 3, at 180-95. For these reasons, education can be listed, along with the
other issues, as requiring a different regional solution.
n104. David Barron, Rethinking Home Rule 69-71 (unpublished manuscript, on file with
the Harvard Law School Library).
n105. See The Challenge of Local Governmental Reorganization, supra note 24, at
n106. See infra pp. 1832-33.
n108. David J. Barron, A Localist Critique of the New Federalism,
51 Duke L.J. 377 (2001).
Frug, supra note 3, at 85-88; see also
Gerald E. Frug, Euphemism as a Political Strategy, 30 Envtl. L. Rep. 11,189 passim (2000) [hereinafter
Frug, Euphemism]; Gerald
Frug, The New Metropolitanism, 14 Harv. Design Mag. 84, 84-85 (2001).
Frug, supra note 3, at 86 (citation omitted). For an insightful argument in support of a
revived interest in democratic planning, very much in the same spirit as this
Article, see Robert Fishman, The Death and Life of American Regional Planning,
in Reflections on Regionalism, supra note 6, at 107.
n111. For convenience, I refer to
"cities" as the organizing units of the regional legislature. In many regions of the
country, however, a substantial percentage of the population lives in
unincorporated areas as well as in cities and towns. Obviously, the regional
legislature also has to include residents of these areas. For a suggestion on
how to do so, see infra note 139.
n112. The European Union originally had six members: Belgium, France, Germany,
Italy, Luxembourg, and the Netherlands. The United Kingdom, Denmark, and
Ireland were added in 1973, Greece in 1981, Spain and Portugal in 1986, and
Austria, Finland, and Sweden in 1995. Desmond Dinan, Ever Closer Union: An
Introduction to European Integration 5 (2d ed. 1999). Further expansions are in
negotiation. Id. at 192-94.
n113. See, e.g., Michael Burgess, Federalism and European Union: The Building of
Europe, 1950-2000, at 14 (2000); Simon Hix, The Political System of the
European Union 2 (1999); David McKay, Designing Europe: Comparative Lessons
from the Federal Experience 8-22 (2001); Andrew Moravcsik, The Choice for
Europe: Social Purpose and State Power from Messina to Maastricht 3-10 (1998);
& William Wallace, Policy-Making in the European Union 530-32 (4th ed. 2000);
J.H.H. Weiler, The Constitution of Europe (1999); Erik Oddvar Eriksen
& John Erik Fossum, Post-National Integration, in Democracy in the European
Union: Integration Through Deliberation? 1, 2 (Erik Oddvar Eriksen
& John Erik Fossum eds., 2000); Paul Pierson, The Path to European Integration:
A Historical Institutionalist Analysis, 29 Comp. Pol. Stud. 123, 124 (1996).
For an overview of the debate, see, for example, Liesbet Hooghe
& Gary Marks, Multi-Level Governance and European Integration 1-32 (2001), and
& Emilios Christodoulidis, The European Union as an Essentially Contested
Project, in The European Union and Its Order: The Legal Theory of European
Integration 17 (Zenon Bankowski
& Andrew Scott eds., 2000).
n114. The European Union has sought to make such a division as well. I shall omit
here, however, any discussion of the attempt made by the European Union to
divide powers among the supranational, national, and local levels, known in
Europe as the principle of
"subsidiarity." Subsidiarity is different from federalism as it exists in the United States,
but it is still based on a functionally defined, two-tier model already
familiar in the American context. Subsidiarity is therefore subject to the same
critique I offered earlier when discussing the two-tier model. See supra p.
1780. For an analysis of the relationship between subsidiarity and American
federalism, see George A. Bermann, Taking Subsidiarity Seriously: Federalism in
the European Community and the United States,
94 Colum. L. Rev. 331 (1994); W. Gary Vause, The Subsidiarity Principle in European Union Law - American
27 Case W. Res. J. Int'l L. 61 (1995).
n115. In addition to the European Parliament and the Council, the key institutions
of the European Union include the European Commission (a collective executive
or secretariat), the European Council (the heads of state or government of the
member nations, together with the President of the Commission), the European
Court of Justice, and the Court of Auditors. Dinan, supra note 112, at 205.
Each of these institutions has its own way of building national interests into
the collective structure. The members of the twenty-person Commission,
consisting of two members from each of the larger states and one from each of
the smaller states, are expected to act independently, rather than to take
instruction from their governments. The European Council, which gives each
member state equal representation, almost always operates by consensus.
Although the members of the Court of Justice are appointed by common accord of
the member states, in practice the Court includes one representative from each
member state. Id. at 307. The Court of Auditors is appointed by the Council
acting unanimously, but in practice consists of one representative from each of
the member states. Id. at 316. Dozens of other significant institutions have
also been established within the European Union, including the Committee of the
Regions, which I discuss below, see infra p. 1835. For an introduction to the
institutional structure of the European Union, see Dinan, supra note 112, at
& Wallace, supra note 113, at 9-35.
n116. The European Parliament's allocation of seats ranges from ninety-nine for
Germany to six for Luxembourg. Consolidated Version of the Treaty Establishing
the European Community art. 190(2), Oct. 11, 1997, O.J. (C 340) 173 (1997)
[hereinafter Treaty Establishing the European Community]. This allocation is
not strictly proportionate to population. See Hix, supra note 113, at 77.
Citizens per seat range from 826,000 for Germany to 67,000 for Luxembourg. The
Treaty of Nice changes the allocation in light of an expanded membership. See
Treaty of Nice, Protocol on the Enlargement of the European Union, art. 2, Feb.
26, 2001, O.J. (C 80) 49 (2001).
Reynolds v. Sims, 377 U.S. 533, 575 (1964); accord
Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 675 (1964).
Bd. of Estimate v. Morris, 489 U.S. 688, 703 (1989);
Mahan v. Howell, 410 U.S. 315, 328-30 (1973).
Avery v. Midland County, 390 U.S. 474, 493-94 (1968) (footnote omitted).
n120. In none of the top twenty-five metropolitan areas, as defined by the 2000
census, does the central city contain more than 43.5% of the metropolitan
area's population. In a few cities - for example, San Antonio (the 30th largest
metropolitan area), Austin (the 38th), Memphis (the 44th), and El Paso (the
64th) - the central city does continue to have more than a majority (sometimes
a vast majority) of the metropolitan area population. Compare U.S. Census
Bureau, supra note 5, at PHC-T-5 tbl.2 (ranking incorporated localities of
100,000 or more residents by population), with id. at PHC-T-3 tbl.3 (ranking
major metropolitan areas by population). The dominance of these central cities
is no accident: it results from state annexation policy. Annexation policy has
similarly affected those cities that now constitute less than 20% of their
metropolitan area - cities like Boston, Detroit, and Atlanta. See supra pp.
1766-68. Compare id. at PHC-T-5 tbl.2, with id. at PHC-T-3 tbl.3.
& Wallace, supra note 113, at 19.
"very roughly" may be too generous a term. Although the Council's allocation of votes for
qualified majority voting gives more populous members more votes than it gives
less populous members, it gives ten votes to France (population: 58.1 million)
as well as to Germany (population: 81.7 million) and gives the smaller
countries a disproportionately greater share of the vote (Luxembourg, with two
votes, has 200,000 people per vote, while Germany, with ten votes, has
8,200,000 people per vote). Hix, supra note 113, at 70. This allocation is
"rougher" than the allocation of seats in the European Parliament. See supra note 116.
As for the supermajority requirement, a majority of 62 of the 87 votes is
required for acts to be adopted, with at least 10 of the 15 members concurring
unless the proposal derives from the Commission. Treaty Establishing the
European Community, supra note 116, at art. 205(2); Hix, supra note 113, at
n123. See Martin Dedman, The Origins and Development of the European Union 1945-95,
at 116-17 (1996); Dinan, supra note 112, at 261-65.
n124. Treaty of Nice, supra note 116, at art. 3.
n125. See supra note 122.
n126. Historically, many states organized one of their two legislative bodies by
giving every county equal representation. The decision in Reynolds v. Sims,
however, declared that form of organization unconstitutional.
377 U.S. 533, 575 (1964).
Gordon v. Lance, 403 U.S. 1, 8 (1971) (upholding a West Virginia law requiring sixty percent approval in a local
Brown v. Thomson, 462 U.S. 835 (1983);
Mahan v. Howell, 410 U.S. 315 (1973).
n129. In its early years, the European Union relied more on unanimity than on
qualified majority voting and has only gradually increased its reliance on the
qualified majority mechanism. See Dinan, supra note 112, at 261-65.
n130. Currently, the number of votes required is sixty-two out of eighty-one, or
76.5%. And ten of fifteen members must support a measure unless the proposal
originates from the Commission. Treaty Establishing the European Community,
supra note 116, at art. 205. The Treaty of Nice would change the number of
votes required to 258 out of 345, or 74.8%. The Treaty of Nice would also
require that these 258 votes be cast by a majority of members when considering
a proposal from the Commission, and by two-thirds of the members otherwise.
Treaty of Nice, Declarations Adopted by the Conference, Declaration on the
Enlargement of the European Union, Feb. 26, 2001, O.J. (C 80) 82 (2001).
n131. The Supreme Court upheld a similar effort to ensure that every county was
represented in the state legislature, even though such an accommodation
violated the strict demand for equal representation, because the deviation it
caused was not too great. See
Brown, 462 U.S. at 843-48 (upholding a system that allocated one member of the Wyoming House of
Representatives to the least populous county even though its level of
population-per-representative was sixty percent below the mean).
n132. See U.S. Census Bureau, supra note 5, at PHC-T-3 tbl.1 (listing metropolitan
areas and their geographic components). The numbers in the text refer to what
the Census Bureau calls the
"primary metropolitan statistical area" (PMSA) for Boston, Massachusetts. PMSAs include the area's largest city or
county along with the outlying areas that are at least fifty percent urbanized.
In a number of metropolitan areas with populations of more than one million
people - including Boston - the Bureau also recognizes a
"consolidated metropolitan statistical area" (CMSA). The Census Bureau recognizes CMSAs if several different PMSAs are
considered sufficiently interrelated to be combined. See U.S. Census Bureau,
U.S. Dep't of Commerce, About Metropolitan Areas (2002), at
http://www.census.gov/population/www/estimates/aboutmetro.htm. If it were
decided that the CMSA for Boston, Worcester, Lawrence, and surrounding areas in
Massachusetts, New Hampshire, Maine, and Connecticut - rather than the PMSA for
Boston - was the appropriate region, the numbers in the text would be
considerably larger. According to the 2000 census figures for the CMSA, there
are 282 cities and towns in the region, ranging in population from 775
(Newington, New Hampshire) to 589,141 (Boston). The total regional population
is 5,819,100. See U.S. Census Bureau, supra note 5, at PHC-T-3 tbl.1. If each
city had a representative for every 775 people - thereby giving Newington one
representative - it would mean a total of roughly 7500 representatives for the
region as a whole, with Boston having 760, Newton having 108, and Newbury
n133. For a possible organization of such an Executive Committee, see infra note
Roxbury Taxpayers Alliance v. Del. County Bd. of Supervisors, 80 F.3d 42, 44 (2d Cir. 1996).
n135. Treaty Establishing the European Community, supra note 116, at art. 190. The
number, after expansion, is limited to 700. See Dinan, supra note 112, at 269.
For other numbers, see http://www.bundestag.de/htdocs<uscore>e/orga/02electbg/02composit.html (last visited Apr. 7, 2002) (German
Bundestag); Composition of the House of Commons, June 2001,
http://www.parliament.uk/parliament/guide/co2001.htm (last visited Apr. 7,
2002) (Commons); A.H.M. Jones, Athenian Democracy 109 (1957) (Athens).
n136. Consider, for example, one possible composition of a 705-person legislature
for the Boston area. Every city and town in the region would be represented by
at least one delegate. Nine delegates would cast less than one full vote
(ranging from South Hampton's representative casting 0.17 of a vote to the
Carlisle representative casting 0.97 of a vote). All others would cast more
than one full vote, and all but 24 of the 129 cities and towns would be
entitled to have more than one delegate in the room. The smaller cities (with
populations ranging from 7300 to 17,000) would have 2 or 3 delegates; mid-size
cities (with populations ranging from 17,000 to 50,000) would have from 4 to 10
delegates; Cambridge (the second largest city in the region) would have 21
delegates; and Boston would have 121 delegates. A table indicating how every
city would be represented in a 705-person legislature for a region of 129
cities - as well as in a slightly larger legislature for a region of 282 cities
- is on file with the Harvard Law School Library. Gerald E.
Frug, A Boston Regional Legislature (2002) (unpublished table on file with Harvard
Law School Library).
n137. The interlocal agreement and bylaws of the Puget Sound Regional Council can be
found at Puget Sound Regional Council, About the Regional Council,
http://www.psrc.org/about/index.htm (last visited Apr. 7, 2002). The
descriptions in the text and the following footnotes are based on the
information available at that web site and from the author's telephone
interview on August 30, 2001, with Mary McCumber, Executive Director of the
Puget Sound Regional Council.
n138. As required by state law, Puget Sound Regional Council institutions, including
the General Assembly, include representatives of state agencies and public
authorities that deal with transportation issues.
Wash. Rev. Code 47.80.060 (2001). These
"statutory members" are also represented on the Regional Council's 26-member Executive Committee,
a body responsible for organizing issues for General Assembly consideration. In
addition to the statutory members (who cast 150 of the 1150 votes), the
Executive Committee consists of General Assembly members representing the four
constituent counties, the region's three largest cities, and the region's other
cities and towns. The representatives of these remaining cities and towns are
selected by a caucus of all of them, and the members selected for the Executive
Committee are instructed to represent their collective will. The voluntary
agreement also enables representatives of tribal governments to become members
of the General Assembly (but not the Executive Committee); however, no such
representatives are currently members.
n139. Four features of the Puget Sound General Assembly are noteworthy: its method
of allocating votes to the member local governments; its supermajority rule;
the fact that it was organized by interlocal agreement rather than state law;
and its decision to make locally elected officials, rather than people elected
solely to be regional decisionmakers, the members of the General Assembly.
General Assembly votes are allocated to each of the four constituent counties
in a manner consistent with the one-person, one-vote principle. Within each
county's delegation, county officials cast fifty percent of the votes and city
and town officials cast the other fifty percent (these city and town votes, in
turn, are allocated according to each municipality's share of the population in
the county's incorporated areas). The drafters of the interlocal agreement may
have imagined the county officials as primarily representing the people who
live in the unincorporated areas within the counties. They do have more
responsibility for unincorporated areas than for cities and towns, even though
they are elected countywide by voters in incorporated and unincorporated areas
alike. This understanding of the voting system, however, overrepresents the
population of the unincorporated area in the most populous county in the region
(where it constitutes one-fifth of the county's population) and underrepresents
it in the least populous county (where it constitutes more than two-thirds of
the county's population). Perhaps, then, the drafters of the interlocal
agreement imagined that the county officials, because they are elected
countywide, would represent all residents of the county wherever they lived.
The problem with this understanding is that city and town residents would be
given double representation: they would be represented both by county officials
and by their own officials. It would thus result in a system of one-person,
two-votes for some (but not all) county residents. Under either reading,
therefore, if the General Assembly exercised sufficient power to be considered
governmental, its method of allocating voting power would be unconstitutional.
The composition of the General Assembly would probably not be held
unconstitutional, however, because its present powers are not likely to be
considered extensive enough to be classified as
Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973), and
Hadley v. Junior College District, 397 U.S. 50 (1970). For a discussion of the issue of governmental powers, see
Postema v. Snohomish County, 922 P.2d 176 (Wash. Ct. App. 1996). See also
Education/Instruccion, Inc. v. Moore, 503 F.2d 1187 (2d Cir. 1974);
City of St. Albans v. Northwest Reg'l Planning Comm'n, 708 A.2d 194, 199 (Vt. 1998). (If the General Assembly's powers were governmental, its composition would not
be saved by the rule that the one-person, one-vote formula does not apply to
appointed officials. See infra note 184. There is little doubt that the members
of the General Assembly are elected rather than appointed. All local officials
"members as a matter of law upon their various elections."
Bd. of Estimate v. Morris, 489 U.S. 688, 694 (1989); see also
Cunningham v. Municipality of Metro. Seattle, 751 F. Supp. 885, 891 (W.D. Wash. 1990)).
The decision not to base the General Assembly on a one-person, one-vote model
seems unnecessary. The allocation of power between those who live in
incorporated and unincorporated areas could have been accomplished by setting
appropriate voting rules. Although residents of unincorporated areas are
entitled to be represented in the General Assembly, county officials are not
the appropriate people to do so for the reasons suggested above. It would be
better to treat the residents of incorporated areas as a single unit or,
alternatively, to divide them into subgroups, each with its own representative.
(People representing the counties as a whole could then be added to the
legislature as long as their voting strength were proportionate to their
population; as I suggest below, individuals elected regionwide could be added
as well.) With the representation allocated according to population, a
qualified majority voting mechanism could be formulated to achieve the
appropriate level of consensus across the region. The General Assembly already
requires a two-thirds vote on certain key measures. The advantage of a
qualified majority voting mechanism is that it allows this number to be
fine-tuned and applied in different ways and to more measures. The same
solution can be adopted for the Executive Committee, where the voting power is
now allocated according to a weighted voting system similar to the one that
governs the General Assembly.
The authority of the Puget Sound Regional Council is established by state law.
See, e.g., Growth Management Act,
Wash. Rev. Code 36.70A.210(7) (2001); Regional Transportation Planning Organization Act, id. 47.80. But the
organization of the General Assembly is the product of the interlocal agreement
entered into by the counties, cities, and towns of the region that have become
members of the Regional Council. The only state-imposed requirement is that the
planning process for transportation policy include all of the region's
counties, sixty percent of its cities and towns, and seventy-five percent of
its population. Id. 47.80.020. The fact that the Puget Sound General Assembly
was created by voluntary agreement rather than by state law has significant
consequences: it allows localities to opt out of the regional decisionmaking
process. In fact, not every municipality has become a member of the General
Assembly (although most have), and two municipalities have dropped out because
of a controversial decision concerning the airport. A more comprehensive
regional body could be created by state law, the mechanism I have suggested for
the regional legislature.
The decision to make already-elected county and city officials members of the
General Assembly, like the establishment of the General Assembly by voluntary
agreement, strengthens local ties at the expense of regional connections.
Locally elected officials are more likely to identify with their own county's
or city's interests than are people elected solely as regional legislators.
Perhaps for this reason, members of the European Parliament are not allowed to
be members of national legislatures. See Election of Members of the European
Parliament, Bull. Eur. Union, July 8, 1998, at 1.9.4, art. 8, available at
http://europa.eu.int/abc/doc/off/bull/en/9807/p109004. htm. This is not to
suggest that the Puget Sound system is always undesirable. But the choice
between its system and that of the European Parliament needs to be carefully
considered when attempting to combine regional and local interests in a
n140. Telephone Interview with Mary McCumber, Executive Director of the Puget Sound
Regional Council (Aug. 30, 2001).
n141. See Dinan, supra note 112, at 269-77; see also Hix, supra note 113, at 56-98.
n142. For the current breakdown, see Europarl, Members of the European Parliament
(Mar. 2002), http://wwwdb.europarl.eu.int/ep5/owa/p<uscore>meps2.repartition?ilg=EN&iorig=home.
n143. Hix, supra note 113, at 176, 186.
n144. Id. at 180; see also Dinan, supra note 112, at 270.
n145. Hix, supra note 113, at 176 (citations omitted).
n146. For the general argument for proportional representation, see Lani Guinier,
The Tyranny of the Majority: Fundamental Fairness in Representative Demo-cracy
94-101, 109-14 (1994). See also Democracy and Elections: Electoral Sys-tems and
Their Political Consequences (Vernon Bogdanor
& David Butler eds., 1983); Samuel Issacharoff, Pamela S. Karlan
& Richard H. Pildes, The Law of Demo-cracy: Legal Structure of the Political
Process 713-84 (1998).
n147. See Hix, supra note 113, at 75 (discussing conflicts between national and
European interests); id. at 176-78 (discussing the success of party
discipline); id. at 180-84 (discussing second-order national contests).
n148. See id. at 69, 75.
n149. Dinan, supra note 112, at 238; Hix, supra note 113, at 63. Because of a pact
between the two major parties, the presidency of the European Parliament also
rotates between the parties halfway through the parliamentary term. Dinan,
supra note 112, at 292.
n150. Treaty Establishing the European Community, supra note 116, at art. 213(1).
n151. Id. at art. 213(2).
n153. Dinan, supra note 112, at 257, 292; Hix, supra note 113, at 66-67.
n154. Hix, supra note 113, at 78-79.
n155. Id. at 78.
n156. See, e.g., Dinan, supra note 112; Hix, supra note 113; John Peterson
& Elizabeth Bomberg, Decision-Making in the European Union (1999); Wallace
& Wallace, supra note 113.
& Wallace, supra note 113, at 20.
n158. Dinan, supra note 112, at 205.
n159. See sources cited supra note 113.
n160. The original members were Germany, Italy, France, Belgium, the Netherlands,
and Luxembourg. The treaty came into force on July 25, 1952. Clive Archer
& Fiona Butler, The European Union: Structure
& Process 22 (2d ed. 1996).
n161. Burgess, supra note 113, at 64-67; Dedman, supra note 123, at 57-69.
"The Authority [the executive decisionmaker] consisted of nine members ... ;
eight were designated by the governments of
"the Six' acting together and the ninth was elected by the original eight
members. The High Authority members ... were appointed jointly by the
participant governments - none of them were simply nominees of individual
states." Dedman, supra note 123, at 67.
n163. Albeit one not democratically organized. See generally Nelson, supra note 81.
n164. The Report of the Metropolitan District Commission listed transportation as an
item requiring regional attention. See
Metro. Dist. Comm'n, supra note 42, at 17; see also Martin Wachs
& Jennifer Dill, Regionalism in Transportation and Air Quality: History,
Interpretation, and Insights for Regional Governance, in Governance and
Metropolitan America, supra note 60, at 296, 296-97 (discussing support for regional transportation systems
in the 1920s).
n165. See generally Peter Calthorpe, The Next American Metropolis: Ecology,
Community, and the American Dream (1993); Calthorpe
& Fulton, supra note 3, at 68-72, 214-22; Daniel Lazare, America's Undeclared
War: What's Killing Our Cities and How We Can Stop It 273-96 (2001).
n166. Jane Holtz Kay, Asphalt Nation: How the Automobile Took Over America, and How
We Can Take It Back (1997).
n167. See Edward Weiner, Urban Transportation Planning in the United States 41 (4th
n168. The Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No.
102-240, 1024(a), 1025(a), 105 Stat. 1914, 1955, 1962, was amended by the
Transportation Equity Act for the 21st Century (TEA-21), Pub. L. No. 105-178,
112 Stat. 107 (1998) (codified as amended in scattered sections of 23 U.S.C.).
n169. The requirement was first introduced in the Federal-Aid Highway Act of 1962.
Pub. L. No. 87-866, 76 Stat. 1145 (1962) (codified as amended at
23 U.S.C. 134 (2000)); see Weiner, supra note 167, at 41. In the early years, separate
agencies did the planning for highways and transit, but they ultimately began
to coordinate. Now, after the passage of ISTEA, they have been unified into
metropolitan planning organizations that deal with both issues (hence the term
& Dill, supra note 164, at 302.
n170. See generally Surface Transp. Policy Project, Easing the Burden (2001),
http://www.transact.org/Reports/tti2001/default.htm; William Julius Wilson,
When Work Disappears: The World of the New Urban Poor (1996); Sierra Club, Stop
Sprawl: Transportation Issues, at
http://www.sierraclub.org/sprawl/transportation/ (last visited Apr. 7, 2002).
n171. See, e.g., Surface Transp. Policy Project, Changing Direction: Federal
Transportation Spending in the 1990s, at 11 (2000) [hereinafter Changing
Direction] (citing polls from Minneapolis-St. Paul, St. Louis County, and the
San Francisco Bay Area, as well as other regions); see also James Sterngold,
California Governor Sees an End to Freeway Building, N.Y. Times, Aug. 21, 2001,
n172. Of course, cities do have transportation responsibilities. In Boston, for
example, the city maintains a Public Works Department for highway maintenance
and construction and a Department of Transportation for traffic, parking, and
related issues. Two public authorities, however, with members appointed by the
governor, manage the city's public transportation system and airport. Henry
Peyrebrune, Institutional and Governance Issues for Large Cities in
Transportation, in Transportation Issues in Large U.S. Cities 98, 101-04
(Transp. Research Bd. ed., 1998).
n173. Weiner, supra note 167, at 34-35.
n174. Federal grants have made up eighteen to twenty-four percent of
government-supported transportation funding in the United States. Bureau of
Transp. Statistics, National Transportation Statistics 2000, at 213 tbl.3-25a
(2001), available at http://www.bts.gov/btsprod/nts/entire.pdf. But these funds
are allocated largely by state decisionmaking processes. Changing Direction,
supra note 171, at 31 ("In many metro areas the state department of transportation exercises discretion
over how much funding is handed over to metropolitan control, and the state DOT
often wields considerable influence over the planning process."); see also Advisory Comm'n on Intergovernmental Relations, MPO Capacity:
Improving the Capacity of Metropolitan Planning Organizations to Help Implement
National Transportation Policies 17 (1995) [hereinafter MPO Capacity]. Although
TEA-21 seeks to limit state power in the larger metropolitan areas,
23 U.S.C. 134(i)(4) (2000) (providing, with some exceptions, that a metropolitan planning
organization (MPO) would select projects after
"consultation" with the state), the impact of this provision is uncertain in light of the
plenary power states wield over cities. Compare
Hunter v. City of Pittsburgh, 207 U.S. 161, 179 (1907) (holding that states' power over municipal corporations is
"unrestrained by any provision of the Constitution of the United States"), with
Lawrence County v. Lead-Deadwood Sch. Dist., 469 U.S. 256, 270 (1985) (holding that federal statutes intending to expand local municipal control
preempt state attempts to override such control).
n175. In 1995, metropolitan areas, which then contained 64% of the nation's
population, received 46% of federal roadway dollars, while rural areas, which
contained 28% of the population, got 39% of these funds. Surface Transp. Policy
Project, Going Nowhere: Federal Transportation Spending Benefits Metropolitan
Fringes Not Existing Communities, at http://www.transact.org/
reports/money/fringe.htm (last visited Apr. 7, 2002).
"On a per capita basis, urbanized areas received $ 54.25 per person, while
non-urbanized received $ 115.11 and rural areas received $ 98.01." Id.
n176. MPO Capacity, supra note 174, at 33. When the ACIR report was written in 1995,
there were 339 officially recognized MPOs in the United States. Id. at 15.
n177. Id. at 34. The Puget Sound Regional Council, discussed supra notes 137-140 and
accompanying text, is the region's MPO and is a significant exception to this
n178. Boston Metro. Planning Org., Detailed Information About the MPO, at
http://www.ctps.org/bostonmpo/mpo/whatde.htm (last visited Apr. 7, 2002).
Boston has a permanent seat on the board; the other seats are allocated in
elections every two years. Id.
n179. See Metro. Transp. Comm'n, About MTC: Commissioners, at
http://www.mtc.ca.gov/about<uscore>mtc/commphot.htm (last visited Apr. 7, 2002).
n180. See Boston Metro. Planning Org., supra note 178.
n181. See U.S. Census Bureau, U.S. Dep't of Commerce, Census 2000 Data for the State
of Massachusetts, GCT-PH1 (2002),
http://www.census.gov/census2000/states/ma.html. Boston has 589,141 residents.
Id. Giving Boston one-seventh of the representation can also be understood as
too low as a percentage of the population of all 101 of the cities in the
region; collectively, the cities have a population of roughly 3,000,000. Boston
Metro. Planning Org., Boston MPO Transportation Plan 2000-2025, at 38 (2001),
n182. See U.S. Census Bureau, U.S. Dep't of Commerce, Census Data for the State of
California, GCT-PH1 (state by county) (2002),
n183. According to a 1993 study by the Federal Highway Administration, central
cities were underrepresented on seventy-nine percent of MPO boards. Seth B.
Benjamin, John Kincaid
& Bruce D. McDowell, MPOs and Weighted Voting, Intergovernmental Persp., Spring
1994, at 31. Although a small percentage of the boards used weighted voting,
central cities were underrepresented even on most of these as well. Id.
n184. This distinction originated in
Sailors v. Board of Education, 387 U.S. 105, 109 (1967) (upholding the constitutionality of a county school board selected by
representatives of local school boards by an
"appointive," not elective, system). The distinction has been invoked to uphold the
one-vote-per-city organization of regional planning agencies. See, e.g.,
Education/Instruccion v. Moore, 503 F.2d 1187 (2d Cir. 1974);
City of St. Albans v. Northwest Reg'l Planning Comm'n, 708 A.2d 194 (Vt. 1998). If the city and county officials on the MPO automatically become members once
they are elected to their offices, they are considered
"elected"; if, by contrast, the officials are selected from among a range of elected
officials - for example, if the city council chooses one member at large to
represent the city - they are considered
Cunningham v. Municipality of Metro. Seattle, 751 F. Supp. 885, 893 (W.D. Wash. 1990). Virtually all the members of San Francisco's MPO would, under this definition,
be considered appointed.
n185. Nelson, supra note 81, at 632.
n186. MPO Capacity, supra note 174, at 16.
Hadley v. Junior Coll. Dist., 397 U.S. 50 (1970) (holding that a school board must be allocated according to the one-person,
one-vote formula), with
Ball v. James, 451 U.S. 355 (1981) (finding that requirement inapplicable to a water district), and
Sayler Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719 (1973) (same).
St. Albans, 708 A.2d at 199; see also
Education/Instruccion, 503 F.2d at 1189.
n189. MPO Capacity, supra note 174, at 13; Benjamin K. Olson, Comment, The
Transportation Equity Act for the 21st Century: The Failure of Metropolitan
Planning Organizations To Reform Federal Transportation Policy in Metropolitan
28 Transp. L.J. 147, 172-73 (2000).
n190. MPO Capacity, supra note 174, at 26; Boston Metro. Planning Org., supra note
181, at 8, 9-10.
n191. MPO Capacity, supra note 174, at 13. To be sure, some members of MPO boards
are elected local officials, but their dual roles as city officials and
regional officials - along with the fact that they do not accurately represent
the region as a whole - undermine their effectiveness as regional voices for
the decentralization of power. See supra note 139 (discussing local
representation in the Puget Sound General Assembly).
n192. For example, representatives of the Federal Highway Administration, the
Federal Transit Administration, the Massachusetts Highway Department, and the
Massachusetts Turnpike Authority are members of the Boston MPO. Boston Metro.
Planning Org., supra note 178.
n193. See supra p. 1791.
n194. See infra p. 1834.
23 U.S.C. 134(b)(2) (2000).
n196. A regional legislature would consist of locally elected officials, as required
by the TEA-21, id., and agency and state officials could contribute to
legislative deliberations on transportation issues in a way that would not
undermine the legislature's democratic structure. For an example of such an
approach, see my discussion of the Puget Sound General Assembly, supra note
n197. Cf. Boston Metro. Planning Org., supra note 181; Metro. Transp. Comm'n, Draft
2001 Regional Transportation Plan for the San Francisco Bay Area (Aug. 2001),
http://www.mtc.ca.gov/projects/rtp/rtpindex.htm (presenting findings and
recommendations of the Metropolitan Transportation Commission).
n198. For an introduction to smart growth, see Gerald
Frug, Richard Ford
& David Barron, Local Government Law 503-49 (3d ed. 2001);
Frug, Euphemism, supra note 109. For an argument that smart growth should be the focus of a regional
strategy, see David Rusk, Growth Management: The Core Regional Issue, in
Reflections on Regionalism, supra note 6, at 78.
n199. Hanna Fenichel Pitkin
& Sara M. Shumer, On Participation, democracy, Fall 1982, at 43, 52.
n200. See generally Governance and Opportunity in
Metropolitan America, supra note 60;
Frug, supra note 3, at 113-64 (analyzing the
"geography of community" in terms of the separation and inequality of region inhabitants); Cashin,
supra note 96 (considering inequality, both economic and political, as a
barrier to regionalism).
Minn. Stat. 473F (2000). For the legislative history of the Act, see Orfield, supra note 3, at
143-44. For an analysis of the Act, see Note, Minnesota's Metropolitan Fiscal
Disparities Act - An Experiment in Tax Base Sharing,
59 Minn. L. Rev. 927 (1975). The Act was declared constitutional in
Village of Burnsville v. Onischuk, 222 N.W.2d 523 (Minn. 1974).
Minn. Stat. 473F.08 (2000).
n203. See, e.g., Calthorpe
& Fulton, supra note 3, at 86, 190-93; Peirce, supra note 3, at 243-90, 311;
Rusk, supra note 31, at 232-48. In 1998, the annual fiscal disparities fund
totaled $ 410 million, of which 137 cities, towns, and villages were net
recipients and 49 were net contributors. Id. at 240.
n204. Note, supra note 201, at 947.
n205. Orfield, supra note 3, at 87; Note, supra note 201, at 949-50.
n206. Note, supra note 201, at 950 n.90.
n207. All of these phrases are now contained in the Treaty Establishing the European
Community, supra note 116, at art. 158, but the language has developed over the
life of the European Union. See Wallace
& Wallace, supra note 113, at 244-45.
n208. Robert R. Geyer, Exploring European Social Policy 129 (2000); Hooghe
& Marks, supra note 113, at 107.
n209. Council Regulation 1260/1999 of June 21, 1999 lays down the general provisions
on the structural funds, 1990 O.J. (L 161) 1. The Cohesion Fund focuses on
environmental and transportation projects in the four member countries (Spain,
Greece, Ireland, and Portugal) whose per capita gross national product is below
ninety percent of the European Union average. Council Regulation 1164/94 of May
16, 1994, 1994 O.J. (L 130) 1, 3. For the period 2000 to 2006, the amount
dedicated to both funds will be .260 billion, with .195 billion allocated to
the structural funds, .18 billion to the cohesion funds, and .47 billion
earmarked for new members of the European Union. European Comm'n, Structural
Actions 2000-2006: Commentary and Regulations 3 (2000) [hereinafter Structural
Actions]. For a general introduction to these funds, see id.; Geyer, supra note
208, at 129-55; Peterson
& Bomberg, supra note 156, at 146-72; Wallace
& Wallace, supra note 113, at 243-65. For a more complete analysis, see Andrew
Evans, The E.U. Structural Funds (1999).
n210. This process is well described in Hooghe
& Marks, supra note 113, at 93-104.
n211. Structural Actions, supra note 209, at 10, 18.
n212. For a discussion of the political effects of these funds, see Hooghe
& Marks, supra note 113, at 113; Peterson
& Bomberg, supra note 156, at 149.
n213. See Studenski, supra note 8, at 87-88; Jackson, supra note 8, at 448-50;
Rosabeth Moss Kanter, Business Coalitions as a Force for Regionalism, in
Reflections on Regionalism, supra note 6, at 154.
n214. See Manuel Pastor Jr., Peter Dreier, J. Eugene Grigsby III
& Marta Lopez-Garza, Regions that Work: How Cities and Suburbs Can Grow Together
97-123 (2000); Ledebur
& Barnes, supra note 59, at 3-7; Savitch, Collins, Sanders
& Markham, supra note 59, at 342-47; Voith, supra note 59, at 30-31.
n215. See sources cited supra note 39.
n216. An analogous political dynamic has fostered the substantial increase in the
European Union's structural funds since the late 1980s. Peterson
& Bomberg, supra note 156, at 149.
n217. In the European Union, some portion of the funds is distributed to each of the
member nations. Structural Actions, supra note 209, at 11, 19.
n218. See generally Michael Dorf
& Charles Sabel, A Constitution of Democratic Experimentalism,
98 Colum. L. Rev. 267 (1998) (describing a new form of decentralized government that both enables citizens
to experiment with solutions to local problems and requires the localities to
share what they have learned with others facing similar problems through
regional and national coordinating bodies).
"Partnership" is one of the key features for structural funds in the European Union, and the
European Union defines the concept not in terms of interlocal relationships but
in terms of public/private - and local/national - relationships. Structural
Actions, supra note 209, at 26; Wallace
& Wallace, supra note 113, at 259-60.
n220. Cf. Manuel Pastor, Jr., Looking for Regionalism in All the Wrong Places:
Demography, Geography, and Community in Los Angeles County, 36 Urb. Aff. Rev.
747, 771-77 (2001) (mounting a challenge to
"new regionalist" solutions, which emphasize the commonalities among inhabitants of a region, by
demonstrating the existence of significant and divisive distinctions among
inhabitants of Los Angeles County).
n221. The European Union's revenues come from three sources: customs duties,
agricultural levies, and a proportion of the base used by the member nations
for the value-added tax (with a ceiling of one percent). See Wallace
& Wallace, supra note 113, at 213.
& Marks, supra note 113, at 107; Peterson
& Bomberg, supra note 156, at 149.
Frug, Ford & Barron, supra note 198, at 656.
& Marks, supra note 113, at 98-102.
n225. Christine A. Desan, The Constitutional Commitment to Legislative Adjudication
in the Early American Tradition,
111 Harv. L. Rev. 1381, 1389-90 (1998).
n226. Treaty Establishing the European Community, supra note 116, at art. 17.
n227. See, e.g., J<um u>rgen Habermas, The Inclusion of the Other: Studies in Political Theory 105-61
& Pablo De Greiff eds., Ciaron Cronin trans., 1998); Weiler, supra note 113, at
324-57; Ulrich K. Preubeta, Citizenship in the European Union: A Paradigm for
Transnational Democracy?, in Re-imagining Political Community: Studies in
Cosmopolitan Democracy 138 (Daniele Archibugi, David Held
& Martin K<um o>hler eds., 1998); Rosa Comella, Democracy in the Administrative State: Changing
Actors, at ch. 3 (Fall 2001) (unpublished manuscript, on file with the Harvard
Law School Library).
n228. Treaty Establishing the European Community, supra note 116, at art. 18.
n229. Id. at art. 19(1). A Council Directive qualified the right to vote and to
stand as a candidate to some extent. For example, member states have been
authorized to establish minimum residency requirements if nonnational European
citizens exceed twenty percent of the population of voting age, Council
Directive 94/80/EC, art. 12, 1994 O.J. (L 368) 38, available at
http://europa.eu.int/eur-lex/en/lif/dat/1994/en<uscore>394L0080.html, and to restrict the office of mayor to nationals, id. at art. 5.
n230. Treaty Establishing the European Community, supra note 116, at art. 19(2).
n231. See Weiler, supra note 113, at 350-51 (suggesting the possibility of requiring
a majority vote in the member states as well as Europe as a whole). Simon Hix
cites an unpublished source for a similar idea. Hix, supra note 113, at 184.
Weiler has also proposed a
"decisional web site" as a citizenship-building device. Weiler, supra note 113, at 352.
n232. Weiler, supra note 113, at 329.
n233. See Iris Marion Young, Inclusion and Democracy 81-120 (2000).
n234. See supra pp. 1806-09 and 1824-25.
n235. Treaty Establishing the European Community, supra note 116, at art. 18.
Saenz v. Roe, 526 U.S. 489, 500-02 (1999);
Edwards v. California, 314 U.S. 160, 172-74 (1941).
Frug, supra note 3, at 106-07; see also Richard Thompson Ford, The Boundaries of Race:
Political Geography in Legal Analysis,
107 Harv. L. Rev. 1841, 1909-10 (1994). For a critique of this proposal, see Richard Briffault, The Local Government
Boundary Problem in Metropolitan Areas,
48 Stan. L. Rev. 1115, 1156-62 (1996); for a response to Professor Briffault, see Richard Thompson Ford, Beyond
Borders: A Partial Response to Richard Briffault,
48 Stan. L. Rev. 1173, 1188-94 (1996).
n238. For an example of the extension of the franchise to nonresident property
May v. Town of Mountain Village, 132 F.3d 576 (10th Cir. 1997). On the problems of employing service workers in prosperous communities, see,
for instance, Michael Janofsky, Aspen Journal: Ski Resorts Struggle To Lure
Workers, N.Y. Times, Oct. 12, 2000, at A12.
n239. Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and
75 Cornell L. Rev. 1, 40-46 (1989). See generally Evan McKenzie, Privatopia: Homeowner Associations and the Rise
of Residential Private Government (1994).
n240. See, e.g., Charles F. Sabel
& Jonathan Zeitlin, World of Possibilities: Flexibility and Mass Production in
Western Industrialization (1997); Mark Barenberg, Democracy and Domination in
the Law of Workplace Cooperation: From Bureaucratic to Flexible Production,
94 Colum. L. Rev. 753 (1994); Dorf
& Sabel, supra note 218; Susan Helper, John MacDuffie
& Charles Sabel, Pragmatic Collaborations: Advancing Knowledge While Controlling
Opportunism, 9 Indust. and Corp. Change 443 (2000); Rosabeth Moss Kanter, The
Future of Bureaucracy and Hierarchy in Organizational Theory: A Report from the
Field, in Social Theory for a Changing Society 63 (Pierre Bourdieu
& James S. Coleman eds., 1991).
n241. See Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration
(1977); Kenneth McRae, Consociational Democracy: Political Accommodation in
Segmented Societies (1974).
n242. Compare supra note 51 and accompanying text (describing Pittsburgh's
elections), with supra p. 1780 (describing, inter alia, the elections that
created Miami-Dade County's regional government).
n243. See Margaret Weir, Coalition Building for Regionalism, in Reflections on
Regionalism, supra note 6, at 127, 129-35.
n244. See Orfield, supra note 3, at 104-55.
n245. See Barron, supra note 104; see also, e.g.,
Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000) (affordable housing);
Ash v. Attorney Gen., 636 N.E.2d 229, 232 (Mass. 1994) (rent control);
Marshal House, Inc. v. Rent Review and Grievance Bd. of Brookline, 260 N.E.2d 200, 203-07 (Mass. 1970) (condominium conversion);
Naylor v. Township of Hellam, 773 A.2d 770, 776-78 (Pa. 2001) (temporary moratorium).
n246. See Paul S. Weiland, Preemption of Local Efforts To Protect the Environment:
Implications for Local Government Officials,
18 Va. Envtl. L.J. 467, 468 (1999).
411 U.S. 1 (1973). State control of local educational policy is routinely exercised by preempting
local decisionmaking. See, e.g.,
Bd. of Educ. v. Round Valley Teachers Ass'n, 914 P.2d 193, 194-96 (Cal. 1996).
Rodriguez, 411 U.S. at 126-27 (Marshall, J., dissenting).
n249. See, e.g.,
Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 397 (Tex. 1989) (declaring unconstitutional the same school financing system upheld in
Rodriguez). For a list of other state cases, see
Frug, Ford & Barron, supra note 198, at 439.
n250. See Stephens
& Wikstrom, supra note 3, at 3. Compare U.S. Census Bureau, supra note 5, at
PHC-T-3 tbl.1 (listing populations of major metropolitan areas), with id. at
PHC-T-2 tbl.1 (listing populations of states).
n251. See Standard
& Poor's DRI, U.S. Conference of Mayors
& Nat'l Ass'n of Counties, U.S. Metro Economies: The Engine of America's Growth
n252. Rob Gurwitt, The State vs. Sprawl, Governing, Jan. 1999, at 18 (on Maryland);
Nelson, supra note 81, at 625 (on Georgia).
& Marks, supra note 113, at 69-80.
n254. On growth boundaries, see
Frug, Ford & Barron, supra note 198, at 523-32.
n255. See U.S. Census Bureau, supra note 5, at PHC-T-3 tbl.1.
n256. See The Port Authority of N.Y. and N.J., at http://www.panynj.gov (last
visited Apr. 7, 2002); Tahoe Regional Planning Agency, TRPA Main Page, at
http://www.trpa.org (last visited Apr. 7, 2002). See generally Regional
Decisionmaking, supra note 75, at 29-30; Winters, supra note 78.
23 U.S.C. 134(d) (2000).
n258. See Dinan, supra note 112, at 320.
n259. Treaty Establishing the European Community, supra note 116, at art. 265. See
generally Committee of the Regions, at http://www.cor.eu.int/home.htm (last
visited Apr. 7, 2002).
& Marks, supra note 113, at 81-82.
n261. See Tony Hill, Route 128, The Baby Boomer of Highways, Turns 50, Boston Globe,
Aug. 19, 2001, at D1.
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes