New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

114 Colum. L. Rev. (forthcoming 2014)

Abstract

States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, that displace locally elected officials. These “takeover boards” are frequently accused of representing an antidemocratic form of local government and a denial of local autonomy.

In this Article, I suggest that the extent to which takeover boards are subject to an anti-democratic critique is frequently overstated. Efforts to revive near-insolvent localities cannot be oblivious to the causes that generated their distress. Depopulation, high unemployment, depleted municipal services, and blight do not arise spontaneously. They are frequently the consequence of long periods of local mismanagement, in which expenditures deviate substantially from those goods and services that residents prefer, inducing the most mobile among them to gravitate to more hospitable jurisdictions. Any viable response must therefore address the causes of political dysfunction.

I contend that by addressing the political underpinnings of fiscal distress, takeover boards may be more capable of satisfying the interests of local residents for public goods than local elected officials, and may also represent the interests of nonresidents and creditors who are not considered by those officials. Moreover, I suggest, the authority of takeover boards should be expanded to allow them to engage in restructuring of municipal governance in order to avoid the entrenched and defragmented institutions that are often associated with local fiscal distress. The temporary nature of takeover board jurisdiction means that when local governance returns to the realm of normal politics, residents will be in a more informed position to evaluate the optimal structure of local governance.

Date of Authorship for this Version

3-2014

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