GENTRIFICATION


Harvard Law Review
MAY 2002




Copyright (c) 2002 The Harvard Law Review Association
Harvard Law Review

May, 2002

115 Harv. L. Rev. 1763

LENGTH: 33848 words

ARTICLE: BEYOND REGIONAL GOVERNMENT

Gerald E. Frug


 
* 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.

SUMMARY:
  ... "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. ...  

TEXT:
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"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. n8  [*1767]  And the growth was substantial: these cities became four to sixty-five times larger. 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. n10

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 "progress" and "efficiency." 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. n13

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 the change. 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 way. n20

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 (Phoenix n23), and sometimes without asking anyone's permission (Houston, Oklahoma City, Albuquerque 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. n26

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 to Milwaukee." 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. n29

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 region's population. 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 elsewhere. 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  [*1772]  city. 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 separation from "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 through annexation. n40

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 "the  [*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. n45

The Metropolitan District Commission's proposal for Boston never got out of the state legislature, 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 as having "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 reform. 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 adoption. n51

 [*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. n57

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 and economy, 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 function. 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] ... argument." 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 state law. 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 metropolitan feature. 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 power. n66

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. n67

 [*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.) n68

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." n69

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 technical. 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 called "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 governments. 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 board is  [*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 social welfare. n86

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 governance. 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 non-controversial difficulties." n89 This association with technical concerns has distinct advantages: as in the case of special purpose governments, it helps immunize these agreements from political controversy. "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." n90

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 County. 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 redistribution." n94

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." n95

Currently, there is an academic movement in the United States called "new regionalism." 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 "government." Governance "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 linked organizations." 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 preferences." 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 government. 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, jobs,  [*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 state authorization. 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. n108

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 therefore critical.

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 account. n110
 
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 connected clusters  [*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 contexts.

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 overcome these  [*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 deliberative democracy. 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 between a "centralized government" and "local control." 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 population. 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 ... . n119
 
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 metropolitanwide organization. n120  [*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 required. 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 European Union. 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 regional decisionmaker.

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 grounds.

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. n132

 [*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 the decisionmaking.

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. n136

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 legislature. 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 members  [*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 representation. 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. n143

 [*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. n145
 
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 well affect  [*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 unpredictable, way.

(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 Union. 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 Atlanta, for  [*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 transit-oriented development, n165 and popular literature targets the car as the prime cause of the decline of American cities. 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 (ISTEA) 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 environmental groups. 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 about where  [*1815]  the federal transportation funds go and what kinds of transportation projects are built. 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 combined. 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 another. n182

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 governmental power. 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 nature." 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 should replace. 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 galvanize regional  [*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 transportation. 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 legislature's decisions. 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 another  [*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 advantage.

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. n199
 
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, in the "nicer" areas that  [*1821]  this sprawl has created. More accurately, because of zoning laws, they settle into different "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 "harmonious development," "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. n209 "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 funds support. 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 product. 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 unit. 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. n216

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 supplement the  [*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 regional needs.

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. n225

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 Union itself:


 
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 citizenship. n226
 
The meaning of this concept for the European Union has been the subject of considerable debate. 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. n231

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:

 [*1828] 
 
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 nation. n232
 
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. n233

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 Union to "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, as "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.). n237
 
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. n238

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 reason  [*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 controls. 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 societies. 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 imagination.

Still, the question remains whether any regional institution, however cleverly constructed, is politically viable. Many people think that the answer to this question is "no." "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 proposal. 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 escalating development. 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 school day. 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. Like "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 country.

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 policymaking. 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.



FOOTNOTES:
n1. Anthony Downs, New Visions for Metropolitan America 170 (1994).



n2. Id.



n3. The "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, John Mollenkopf & 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.



n18. See Hunter v. City of Pittsburgh, 207 U.S. 161 (1907).



n19. Id. at 178.



n20. 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 Bigger & 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. Rothblatt & 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, 14 (1998).



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.



n33. "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 Boston, in Metropolitan Governance, supra note 30, at 13, 14 (describing Boston's Consolidated Metropolitan Statistical Area as "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), http://www.brookings.edu/es/urban/fulton-pendall.htm.



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.



n37. See 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.



n43. See 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.



n47. 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, nonpolitical terms).



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. Ledebur & 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, in 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 http://www.city.toronto. on.ca/pdf/caorprt.pdf.



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 http://www.london-decides.detlr.gov.uk/whitepaper/wpaper.pdf.



n69. Bollens & 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. Stephens & 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 Nunn & 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.



n90. Id.



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 United Kingdom).



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 30-31.



n106. See infra pp. 1832-33.



n107. Id.



n108. David J. Barron, A Localist Critique of the New Federalism, 51 Duke L.J. 377 (2001).



n109. 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).



n110. 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); Helen Wallace & 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 Zenon Bankowski & 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 Federalism Compared, 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 205-329; Wallace & 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).



n117. Reynolds v. Sims, 377 U.S. 533, 575 (1964); accord Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 675 (1964).



n118. See Bd. of Estimate v. Morris, 489 U.S. 688, 703 (1989); Mahan v. Howell, 410 U.S. 315, 328-30 (1973).



n119. 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.



n121. Wallace & Wallace, supra note 113, at 19.



n122. Even "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 considerably "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 69-74.



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).



n127. See Gordon v. Lance, 403 U.S. 1, 8 (1971) (upholding a West Virginia law requiring sixty percent approval in a local bond referendum).



n128. See 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 having 9.



n133. For a possible organization of such an Executive Committee, see infra note 138.



n134. See 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 "governmental" under 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 become "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 regional institution.



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).



n152. Id.



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.



n157. Wallace & 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.



n162. "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 Opportunity in 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 ed. 1992).



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 "Intermodal"). Wachs & 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, at A10.



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 "supreme" and "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 structure.



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), http://www.ctps.org/bostonmpo/resources/reports.htm.



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), http://www.census.gov/census2000/states/ca.html.



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 "appointed." 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.



n187. Compare 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).



n188. 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 Areas, 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.



n195. 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 139.



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).



n201. 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).



n202. 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).



n219. "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.



n222. Hooghe & Marks, supra note 113, at 107; Peterson & Bomberg, supra note 156, at 149.



n223. See Frug, Ford & Barron, supra note 198, at 656.



n224. Hooghe & 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 (Ciaran Cronin & 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.



n236. See Saenz v. Roe, 526 U.S. 489, 500-02 (1999); Edwards v. California, 314 U.S. 160, 172-74 (1941).



n237. 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 owners, see 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 Community, 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).



n247. 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).



n248. 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 1 (1999).



n252. Rob Gurwitt, The State vs. Sprawl, Governing, Jan. 1999, at 18 (on Maryland); Nelson, supra note 81, at 625 (on Georgia).



n253. Hooghe & 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.



n257. See 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).



n260. Hooghe & 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


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