RAPPAPORT POLICY BRIEFS Institute for Greater Boston Kennedy School of Government, Harvard University December 2007 Boston Bound: A Comparison of Boston’s Legal Powers with Those of Six Other Major American Cities By Gerald E. Frug and David J. Barron, Harvard Law School Boston is an urban success story. It cities — Atlanta, Chicago, Denver, Rappaport Institute Policy Briefs are short has emerged from the fi nancial crises New York City, San Francisco, and overviews of new and notable scholarly research on important issues facing the of the 1950s and 1960s to become Seattle — enjoy to shape its own region. The Institute also distributes a diverse, vital, and economically future. It is hard to understand why Rappaport Institute Policy Notes, a periodic summary of new policy-related powerful city. Anchored by an the Commonwealth should want its scholarly research about Greater Boston. outstanding array of colleges and major city—the economic driver This policy brief is based on “Boston universities, world-class health of its most populous metropolitan Bound: A Comparison of Boston’s Legal Powers with Those of Six Other care providers, leading fi nancial area—to be constrained in a way Major American Cities,” a report by Frug and Barron published by The Boston institutions, and numerous other that comparable cities in other states Foundation. The report is available assets, today’s Boston drives the are not. Like Boston, the six cities online at http://www.tbf.org/tbfgen1. asp?id=3448. metropolitan economy and is one of are large, economically infl uential the most exciting and dynamic cities actors within their states and regions, Gerald E. Frug in the world. have ethnically and racially diverse Gerald E. Frug is the Louis D. Brandeis Professor of Law at Harvard Law School populations, and are doing fairly well and is a member of the Rappaport Boston is also a city at a crossroads, Institute’s Advisory Board. His research facing new challenges bred by its own when compared with other American interests include the legal problems of local governments and legal theory. success, by changes in the national cities. And, like Boston, they all and local economy, and by increased face substantial related challenges David J. Barron competition from cities across the occasioned by increasing suburban David E. Barron is a Professor of Law at growth, signifi cant immigration, the Harvard Law School whose research country and around the world. Unlike interests include administrative law, persistence of concentrated poverty, constitutional law, local government law, many of its competitors, Boston is and property issues. not gaining population. The high and an increasingly competitive global environment. But there is no doubt Rappaport Institute for cost of housing, both within the city Greater Boston that Boston, at present, is a city bound. and in the metropolitan area, poses The Rappaport Institute for Greater a major threat to Boston’s ability to The constraining legal structure that Boston aims to improve the region’s governance by fostering better continue to attract and retain workers now governs Boston forces the city to connections between scholars, policy- makers, and civic leaders. The Rappaport whose innovation fuels the economy. rely on a narrow revenue base, limits Institute was founded and funded by There also remain serious inequities the city’s ability to control its own the Jerome Lyle Rappaport Charitable Foundation, which promotes emerging along racial and class lines and the expenditures, and distorts the city’s leaders in Greater Boston. More information continuing task of improving the city’s efforts to plan. It also places the city about the Institute is available at www.ksg.harvard.edu/rappaport. public schools in order to prepare the at a competitive disadvantage at a © 2007 by the President and Fellows of city’s young people to participate in time when all major cities are looking Harvard College. The contents refl ect the and contribute to the city’s future. to deploy as many tools as possible views of the authors (who are responsible for the facts and accuracy of the research in order to secure their economic herein) and do not represent the offi cial Yet the City of Boston lacks the views or policies of the Rappaport power that six other major American future. It has long been recognized that Institute . Boston Bound RAPPAPORT INTITUTE POLICY BRIEFS Boston has limited legal authority. In fact, city for additional access to funds or relief from offi cials have long complained about the city’s burdensome costs. It should be noted, however, lack of power, especially its restricted ability that the city elected to do so as a last resort to raise revenue. But the city’s complaints after failing to gain back new powers from have largely been to no avail, in part because the state that had been signifi cantly curtailed the issue has so often been framed in terms of in the fi rst wave. Whether the bargains made the city’s need to avert fi scal crises. As long during this time were wise ones is open to as requests for greater home rule are made debate. Boston became a national leader in redevelopment during these years, and it was The constraining legal aided in that effort by state measures that gave structure that now governs Boston additional powers in return for giving Boston forces the city to rely on up some old ones. But in important respects, Boston emerged from the era of urban renewal a narrow revenue base, limits with less legal control over key parts of its city the city’s ability to control its (with some exceptions) than it had decades own expenditures, and distorts before. State-created public authorities—and the city’s eff orts to plan. sometimes the state itself—took over important city assets. in terms of Boston’s immediate fi nancial The other noteworthy event was an amendment circumstances, its complaints are likely to of the state constitution in the 1960s that gave reinforce the popular view that city offi cials are home rule to all cities and towns in the state, simply trying to avoid hard budgetary choices. including Boston. Even though the Home Rule Amendment to the Massachusetts Constitution Background on Home Rule appears to grant broad powers to all localities The state-imposed limits on Boston’s powers in the state, it explicitly exempts taxing, have come in two major waves. The fi rst wave borrowing, the regulation of private and civil spanned the early to mid twentieth century. affairs, and municipal elections from its scope. During this period, the state twice revised Moreover, under the Home Rule Amendment, the city’s charter and greatly restricted the Boston can bring order on its own to the current powers of the city to raise revenues, borrow, jumble of statutes that constitute its charter and spend. These efforts were the byproduct only by placing the whole of its governmental of the region’s unique political history and structure in the hands of a separately elected culture, marked both by an exceptionally charter commission. Such a process gives city activist state legislature and sharp ethnically- offi cials little incentive to push for charter motivated political rivalries between the reform. Additionally, the decisions of the Yankee-dominated legislature (and business Massachusetts Supreme Judicial Court refl ect community) and the Irish-controlled city. a judicial inclination to treat the grant of home The second wave took place in the 1950s rule power narrowly rather than as a broad and 1960s when the city elected to transfer affi rmation of local self-governance. key parts of its infrastructure to the state to There is, of course, more to a city’s legal power address the severe fi scal crises of that time. than the protections contained in state grants Repeatedly during this period, the city ceded of home rule. Other aspects of state law can important authority to the state in return expand or contract city powers in ways that 2 Boston Bound RAPPAPORT INTITUTE POLICY BRIEFS the terms of a home rule amendment might Boston Has Limited Home Rule Power conceal. Still, state home rule provisions are Home Rule Amendment: Because the important in and of themselves. The legal Home Rule Amendment to the Massachusetts defi nitions set forth in provisions such as the Constitution exempts taxing, borrowing, the Home Rule Amendment of the Massachusetts regulation of private and civil affairs, and Constitution play an important role in creating municipal elections from its scope, Boston an ethos of home rule that either presumes city has less authority than the six other major power or city powerlessness. U.S. cities we examined. For example, the Key Findings State law places important Boston’s ability to shape its own future is legal restrictions on innovative limited in three important ways. The fi rst is land use planning tools and that Boston has a much more limited grant of fragments Boston’s control home rule power than other major competitor over much of its infrastructure cities. As a result, Boston’s ability to pursue and territory. No other city in bold initiatives on its own authority is severely our study operates within a restricted. legal structure that has this The second problem is that the current legal combination of restraints. structure is unusually constraining when it comes to local fi scal discretion. State law makes Boston exceptionally dependent on Illinois Constitution grants municipalities home a limited number of revenue sources, most rule powers that pertain to local matters and conspicuously the property tax. As a result, then expressly defi nes them in an expansive Boston’s efforts to plan for its future are fashion.1 As a result, Chicago has the power artifi cially constrained by a need to ensure to tax, the power to borrow, and the power to that its development maximizes a single, “regulate for the protection of the public health, state-selected revenue source.