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The Importance of City Charters
City governance is federalism’s weak link
By Ed Bachrach and Austin Berg
At the national level, activists on the left and right are working vigorously to change our society, culture and political order. But the political domain that affects our daily lives more than any other, our city and town governments, receives the least attention.
The neglect of local politics may, in part, stem from the fact that it is often harder than ever to fight city hall. But this weakness in engaging local government has many roots, chief among them ignorance of a powerful tool to do better, a city charter.
Nowhere is this more apparent than the city we live in, Chicago. Most big cities in the U.S. have charters, but Chicago not only doesn’t have one, it is not even allowed by the state of Illinois to create one. As a result, the city’s government is particularly rife with poor decisions and bad outcomes. Some examples of these problems from the city’s recent history include:
A secret midnight raid destroying a small lakefront airport by then Mayor Richard Daley in 2003. The mayor claimed it was to prevent airborne terrorism but to this day, the reason why he took such capricious action remains a mystery.
A disastrous 2008 concession of parking meter revenue to a private firm for 75 years, also by Mayor Daley. The revenue from the deal was to have been brought into the city budget over the 75 years of the concession, but the mayor grabbed it in the next two budget cycles instead. The price, $1.15 billion, is well below current estimated value of the concession, which is above $5 billion.
And a 2016 suspension of city rules in order to hire the mayor’s preferred police chief, who had not applied for the job. (The new chief was fired in 2019 when officers found him asleep at the wheel of a running car after several large servings of rum.)
Are these rare episodes of long-gone leaders? Unfortunately, the answer is no.
Chicago’s current mayor, Lori Lightfoot, just signed a 10-year deal with the organizers of the music festival, Lollapalooza, allowing them to rip apart the city’s most-visited green space, Grant Park, in the middle of the summer. The week prior to this, she inked a three-year deal with NASCAR for a road race through the same area, closing down the majority of the park for two weeks each July. The mayor executed both contracts in secret. When the details were released some city council members were livid.
These examples raise three questions: What is a city charter? Would a charter have prevented these choices, or at least forced a public debate on them? And have other cities’ charters produced better outcomes?
The Rise of Home Rule
A city charter is a written constitution that spells out how the city government operates. It is typically created and periodically revised by a process that involves a charter commission and voter approval.
The decision to consider creating a new charter or amending an existing one can come from the mayor, the city council or, in some cases, citizen initiative. The charter commission can be appointed by the mayor or council or elected by voters. The National Civic League, the expert on good charter practices, strongly recommends that commission members not be public officials. Once the commission is empaneled it studies the areas of government that might need reconsideration and recommends new or revised charter provisions. Then it is up to voters to approve or reject the work of the commission. Once the charter is adopted it becomes hardened law, and city government cannot ignore or violate it without inviting a lawsuit from citizens who voted to approve it.
Many existing charters for local government were drafted during the progressive era between 1896 and 1916. From the nation’s founding until the turn to the twentieth century cities grew in importance, as industrialization led to urbanization. But their governance was a free-for-all, ripe for capture by political machines such as Tammany Hall in New York City. During the nineteenth century cities were governed directly by states, which told them what they could and could not do. This doctrine of state control over localities came to be known as Dillon’s Rule, after two famous opinions written in 1868 by then-Iowa Supreme Court Justice John Forrest Dillon affirming state control over localities. But in the decades that followed, progressives conceived of the idea of giving cities more latitude in making their own laws. Home rule, as it was called, became more widespread during this time.
As a result, most big cities adopted charters. Chicago tried to adopt charter rule in 1906, but the effort was defeated and was never attempted again. Now, although the Illinois Constitution technically allows for home rule, the state oversees much of what goes on in the cities: elections, schools, pensions, transportation and more. Although the constitution does not prohibit charters, it makes no mention of them. As a result, Chicago has very limited home rule powers.
Does it matter? Would a charter have prevented Chicago’s missteps?
Three of the examples above involved granting a concession to private interests, whereby government allows a private party the use of its property for a fixed term in exchange for payment. The parking meter deal was rammed through city council with minimal disclosure in 48 hours. And the Lollapalooza and NASCAR deals were signed in secret.
In New York, by contrast, the city charter calls for such concessions to be first approved by a franchise and concession review committee after public notice and then to be approved by the city council and mayor. Los Angeles has similar public oversight, though it does not appoint a special committee to do so.
Regarding the destruction of park district property: Although Chicago’s mayor appoints the park district board, it is a separate unit of government and he or she doesn’t have authority over what goes on in the parks. A charter would spell out the mayor’s actual powers and so an act like this one, which exceeds such authority, would at least give citizens grounds to sue the mayor and city.
Finally, the cartoonish and inappropriate hiring of the police chief would have been prevented by a charter that spells out a selection process for key officials—as the Los Angeles city charter does. Instead, this process was written into Chicago city code, which in this case was temporarily changed by a majority vote of the city council along with mayoral approval. Specifically, the selection process was suspended for 24 hours to allow the mayor to appoint his man and then the old process was put back on the books. The “check” of the legislative body is often illusory, as in Chicago where the mayor presides directly over the council, and even directly appoints council members to office in the event of vacancies.
Most big city charters are fairly comprehensive. For instance, New York’s charter is 335 pages and Los Angeles’s is even longer at 382 pages. They cover every aspect of city government, including elections, the city council and mayor, schools, budgeting, pensions, zoning, procurement, policing and much more.
Most cities also are able to democratically revise their charters, and they do so periodically. Sometimes these revisions are prompted by the discovery of a serious problem or structural flaw. For instance, in 1989 New York City’s government structure—specifically the custom whereby the executive committee of borough presidents made all of the big decisions—was found to be unconstitutional by the U.S. Supreme Court. This led to a year-long charter revision that completely changed the government. One of the changes included term limits for city council members and the mayor.
At other times, revisions come about due to citizen pressure for change. For instance, in 1999, in Los Angeles, some villages tried to secede from the city. The city at first panicked but then reacted by addressing their grievances through a charter revision and a subsequent secession vote failed.
In some states only the council or mayor can initiate the process of revising their city charter. In others, citizens can petition the council to undertake revision and even force them to do so. Some think this gives the people a valuable check on runaway government. Others feel this turns the process over to activists and kooks.
In the 1999 Los Angeles charter revision prompted by the prospect of secession, two competing charter commissions emerged. The mayor called for a commission and had the voters elect one. Fearful of losing control, the city council then created its own commission. Fortunately, the leaders of both commissions came together, unified their efforts and revised the charter together.
Although the competing commissions in Los Angeles did not ultimately deter the city from revising its charter, the example shows how important it is to have a process for deciding how they will compose their commissions. Important considerations include:
Before charter revision is undertaken voters should approve the undertaking.
Commission members should then be appointed by the city council and should be ratified by voters before they get to work.
Alternatively, there should be an election for commission members.
Commission members should not include any current government officials.
Next up is the scope of the commission’s work. Important factors include:
The commission should receive a clear mandate that directs what areas of government it should study and revise.
If the commission is appointed rather than voted in, citizens should have the right to petition for revisions. For instance, Minneapolis maintains a standing charter commission appointed by the chief judge of the county court and citizens can propose revisions for the commission to consider.
If the commission receives a narrow mandate, it should be able to appeal to the city council to amend its scope of work.
When it comes time for the commission to decide on the revisions it will recommend to voters, not all members will agree. When the rubber meets the road, further issues arise:
If commission members don’t agree on provisions, it should take more than a simple majority of commission members to approve the revision.
Dissenting commission members should be able to file a dissenting report.
Dissenting views will not be on the ballot but will inform voters who must approve the commission’s work.
George Washington once said, “Government is not reason, it is not eloquence—it is force! Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.” The same is true of a charter. Charters can be a valuable tool for good or a weapon to be used by special interests for narrow ends that don’t ultimately serve the public interest.
When New York revised its charter in 1989 it imposed a two-term limit on the mayor. As Mayor Michael Bloomberg was finishing his second term, he decided he wanted a third. This required a revision of the charter. If the 1989 commission and voters thought term limits had merit, why throw them away at the first chance? Yes, this switch was a minor corruption of the original charter’s intent, but at least there was a charter to change and the effort to do so required debate and a vote by the city council.
Cities without charters, like Chicago, lack a key tool to bring about change, reform and improvement. That’s one reason why, as Ballotpedia reports, 45 of the 50 states allow for charters.
If you are reading this piece from a city with a charter and a state that allows them, can you rest easy? Possibly not. In fact, we would suggest that you look under the hood of your state’s charter legislation and then see how charter creation and revision has worked in your city or other cities in your state. Is this tool serving you well or is the charter legislation itself in need of revision?
Either way, cities and localities generally are better governed with charters and it would be helpful if these jurisdictions had more independence from states. Indeed, perhaps the Tenth Amendment should read: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the cities, or to the people.”
For those of us who believe in the merit of our federal system, we need pay attention to that weak link, and work to strengthen the governance of our cities and localities. A good charter is a good place to start.