[Cross-posted to Medium.]

The spread of “sanctuary cities”—local governments that resist federal laws or regulations in some fashion, and typically for strongly-held moral reasons—is one of the most interesting and controversial governance developments of recent decades. Unfortunately, the concept receives only a selective defense from people when it fits their narrow political objectives, such as sanctuary movements for immigration and gun rights.

But there is broader case to be made for sanctuaries in many different contexts as a way to encourage experiments in alternative governance models and just let people live lives of their choosing. The concept faces many challenges in practice, however, and I remain skeptical that sanctuary cities will ever scale up and become a widespread governance phenomenon. There’s just too much for federal officials to lose and they likely will crush any particular sanctuary movement that gains serious steam.

Sanctuary Cities as Political Civil Disobedience

First, let’s think about what local officials are really doing when they declare themselves a sanctuary. (Because they can be formed by city, county, or state governments, I will just use “sanctuaries” as a shorthand throughout this essay.)

Academics use the term “rule departure” when referencing “deliberate failures, often for conscientious reasons, to discharge the duties of one’s office.” [Joel Feinberg, “Civil Disobedience in the Modern World,” in Humanities in Society, Vol. 2, No. 1, 1979, p 37.] In this sense, sanctuary cities could be viewed as a type of collective civil disobedience by public officials because these governance arrangements are typically defended on moral grounds and represent an active form of resistance to policies imposed by higher-ups.

Rule departure and political civil disobedience can be carried out by individual government officials or entire governing bodies. Back in the 1970s, for example, some judges refused to convict Vietnam-era “draft dodgers,” even though laws made it clear that they were supposed to be punished. And, although it is rare, juries have sometimes nullified laws that they find unconscionable.

When a legislature engages in rule departure, it is often in opposition to federal policies that local officials feel is unfair or unethical. They may even declare themselves in a sort of open rebellion against a very specific directive and steadfastly refuse to acknowledge the legitimacy of the policies being imposed from above. This is how modern sanctuaries developed. In my forthcoming book, Evasive Entrepreneurs & the Future of Governance, I discuss a couple of prominent recent examples.

When state lawmakers refuse to enforce federal marijuana restrictions because officials in those states favor decriminalization that represents rule departure between levels of government. Similarly, in May 2018, Vermont became the first state to legalize the importation prescription drugs from Canada in an attempt to gain access to lower-priced drugs for its citizens. That policy departed from federal law, which tightly controls the importation of drugs into the US.

Rule departures by city and county governments can be even more daring and far-reaching in effect.  After the Trump Administration took office and announced more restrictive immigration policies, many mayors and local officials promptly announced that they would become sanctuary cities and not follow federal immigration reporting requirements. The number of immigration-related sanctuary cities, counties, and even entire states has grown steadily since then. [The Center for Immigration Studies keeps a running list.]

Even more controversial is the rise of the “Second Amendment sanctuary” movement that resists state or federal firearm restrictions. Virginia cities and counties have been particularly aggressive in declaring themselves gun sanctuaries, but the movement is nationwide and growing fast. Interestingly, the leaders of this movement include many local officials, including some sheriffs, who actively oppose immigration-related sanctuary cities. Conversely, most of the local officials who favor immigration sanctuaries oppose Second Amendment sanctuaries. The only thing unifying officials on either side is a commitment to engage in rule departure for moral reasons.

But here’s the question I want to explore: Why not give both these sanctuary movements (and many others) a chance, regardless of what motivates them?

A Sanctuary for Me, But Not for Thee

Of course, there are few issues that divide the Left and the Right more bitterly these days than immigration and guns, and neither side will accept the moral case for rule departure when the other side is promoting it. Stated differently, while each side will make strong moral claims in favor of rule departure for their pet issue, their defense will not extend to the underlying act of rule departure or political civil disobedience more generally.

And that’s a shame. There is a good case to be made not just for greater localized decision-making and policy experimentation, but also for letting people lives of their own choosing in different governance arrangements.

The idea that we could ever have of one single utopia has always been a silly notion for a simple reason: People are just very different. What would make more sense, the late philosopher Robert Nozick once argued, is a governance arrangement that was truly fit for a pluralistic society. In his 1974 book, Anarchy, State, and Utopia, Nozick made the case for a regime in which citizens could potentially take advantage of many different utopias to better fit their preferred governance arrangements. “Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others,” he said.

I’ve always found this “utopia of utopias” vision enormously compelling in theory but somewhat unrealistic in practice. It is appealing precisely because it rejects any effort to define utopia in a monolithic fashion. A true utopia would reject one-size-fits-all governance schemes and instead promote a framework for optimizing an individual’s ability to choose their preferred governance arrangement (hopefully among many options). “There is no reason to think that there is one community which will serve as ideal for all people,” Nozick noted, “and much reason to think that there is not.”

Indeed, it is likely that my preferred utopia is not yours. What’s my particular sanctuary look like? Adam Smith argued in 1755 that all that was needed for lifting civilization up “from the lowest barbarism” to “the highest degree of opulence” is “peace, easy taxes, and a tolerable administration of justice; all the rest being brought about by the natural course of things.” More recently, Emily Chamlee-Wright, president of the Institute for Humane Studies, elaborated on this vision when she identified the core elements of a good society as, “a pluralistic and tolerant society in which intellectual and economic progress are the norm, and where individuals and communities flourish in a context of openness, peaceful and voluntary cooperation, and mutual respect.”

That pretty much sums up the utopia or sanctuary I’d like to live in. More concretely, my perfect sanctuary would combine elements of all the real-world sanctuary cities described above. It would give immigrants safe haven and allow everyone to carry firearms openly while also ignoring federal marijuana restrictions and drug importation rules! Moreover, drones would zip through the air delivering goods (regardless of what the FAA said), driverless cars would occupy the roads (regardless of what the DOT said), and citizens with serious illnesses would be more free to try alternative treatments (regardless of what the FDA said).

Of course, I also appreciate that many other people would prefer to live in sanctuaries where government plays are a far more active role. Might it be possible for us all to agree to live peacefully in our separate utopias, yet also remain part of some loosely unified federation? What would help make that model work, Nozick argued, was some sort of minimal state above all the utopias that ensured peace and free movement of people, goods, and information among them. So, you pick your utopia and I’ll pick mine, but let us agree to be free to trade with each other and move to other utopias if we are not satisfied.

That remains a beautiful governance vision to me, and, if nothing else, I hope others would appreciate the potential benefits associated with experimentation in government administration. In his 1970 book, Exit, Voice and Loyalty, the economist and political theorist Albert Hirschman discussed the interplay between “voice” and “exit”—for businesses, organizations, and even governments—and argued that, “exit has an essential role to play in restoring quality performance of government, just as in any organization.”

Sanctuaries represent a form of localized collective voice (opposing specific policy choices made by higher-ups) combined with the implicit threat of some sort of exit. “The chances for voice to function effectively as a recuperation mechanism,” Hirschman argued, “are appreciably strengthened if voice is backed up by the threat of exit, whether it is made openly or whether the possibility of exit is merely well understood to be an element in the situation by all concerned.” I doubt any cities, counties, or states are going to try to completely exit the American republic over the issues that led them to form sanctuaries. Nonetheless, sanctuaries— and even the very threat to form one—can still act as a sort of relief valve that allow citizens to push back against over-zealous edicts from above, while also potentially giving citizens the chance to “shop around” for better jurisdictional governance arrangements.

Haven’t We Already Tried This?

Practically speaking, however, a utopia of utopias must have some limits or else it breaks down under the weight of endless splintering, border disputes, and even the threat of violence. As the Wall Street Journal editorial board argued in a recent essay about sanctuary cities, an atomistic patchwork of breakaway sub-governments could lead to discord and “lawlessness.” And that was in an editorial about Second Amendment sanctuary cities, which the Journal is more ideologically predisposed to favor!

But this is not a completely unfounded concern. Think about American history. Many people forget that America’s current constitution is not our nation’s first. The Articles of Confederation were formulated by the 13 original colonies as they fought for their independence from Great Britain. The Articles were a dismal failure, however, and did not even last a decade. America’s Founders abandoned the Articles because the sole governing agent—Congress—lacked any real power. It couldn’t do much to sustain itself or an army to defend the new nation, which the Articles treated as more of just a collection of territories in “a firm league of friendship with each other.”

More importantly, because states retained all the real power under the Articles, trade skirmishes broke out among them and Congress was virtually powerless to do anything about it. The so-called “league of friendship” threatened to degenerate into endless commercial and political conflicts among loosely joined state sovereigns. The situation grew intolerable and by 1789 the Articles were discarded in favor of a new Constitution that opted for a more tightly integrated union, which would guarantee some basic rights and also help ensure that commerce and people could move freely across state borders.

The durability of this framework remains a remarkable achievement and, in some ways, could be viewed as a more workable “utopia of utopias” than what the Articles of Confederation proposed. Yet, while plenty of people still play up the benefits of devolution and local control, American federalism has been increasingly neutered over the past century. The federal government came to take on more and more authority over even the most trivial parochial matters. States and localities must now beg for freedoms from federal restrictions, but they usually cave fairly quickly and fall in line with federal demands at the mere threat of federal lawmakers just denying them a few grants. Political kickbacks, it turns out, is a remarkably simple way to get subordinate bodies to fall in line and comply with top-down edicts.

Does a Broader Sanctuary Movement Have Any Hope?

Which is why it is remarkable that the sanctuary city movement is still alive at all. It might be because, as George Mason University law professor Ilya Somin has suggested, many Democrats fell back in love with federalism following the election of Donald Trump. Devolution and local control suddenly sounds a lot more appealing to many Dems when it becomes a way to resist federal restrictions on immigration and marijuana decontrol, among other issues.

It could still be the case that these sanctuary movements will be brought to heel in coming years. Current sanctuary efforts provide a good litmus test for just how much real-world policy experimentation federal officials are willing to tolerate. To the extent any particular sanctuary effort gained meaningful momentum and posed a serious challenge to federal power in some fashion, I believe it would likely be crushed eventually. While plenty of politicians provide lip service to the idea “reinventing government” and enhancing local decision-making, the reality is that if we ever had anything approximating actual entrepreneurial government administration in this country, the feds would likely move quickly to snuff it out.

If the Supreme Court took action to limit semi-rebellious efforts like these, it would also discourage future sanctuary city experiments. But it is more likely that, as suggested above, federal officials would just double-down on the “power of the purse” to intimidate state officials into complying—and then presumably force governors and state legislatures to do the dirty work of cracking down on cities and counties that won’t comply with federal demands. President Trump has already tapped this playbook to threaten immigration sanctuaries with Executive Order 13768 of January 25, 2017, which sought to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds.” Lower courts have pushed back, however, and a bit of a stalemate has ensued.

If things got really ugly, one could imagine President Trump or a future Democratic president calling in the National Guard to deal with sanctuaries that really pushed the limits on immigration, guns, or anything else disfavored by the powers that be. God help us if we get to that point. Hopefully cooler heads will prevail.

A Dream Deferred

In the meantime, I will persist in making the case for sanctuaries and other forms of experimental government—including charter cities and special economic zones—more generally. I remain a bit of a dreamer and will continue to defend alternative governance visions based on the benefits associated with political decentralization, policy experimentation, and citizen choice. I continue to long for Nozick’s noble vision of, “a society in which utopian experimentation can be tried, different styles of life can be lived, and alternative visions of the good can be individually or jointly pursued.”

Alas, I am also a political realist and I recognize it is highly quixotic to believe that this governance framework will carry the day in the short-term. Selective morality will prevail instead. That is, most people will loudly proclaim the moral imperative of sanctuaries only when it fits their ideological priors, while equally vociferously decrying creative governance alternatives when they do not align with their political values. In the end, both sides will only succeed in crushing the broader dream of more decentralized communities of common interest, simply because a lot pf people just cannot tolerate giving others a little zone of freedom in this world.

And so a “utopia of utopias” will likely remain a dream deferred.

I somehow missed this excellent ITIF paper by Robert D. Atkinson and George Ou when it came out at this point last year, but George has just dusted it off, made a couple of updates, and re-posted it over at the Digital Society blog. Worth reading. It touches on a lot of the same case studies I have been documenting in my ongoing series, “Problems in Public Utility Paradise.”  In particular, it focuses on the UTOPIA and iProvo fiascos out in Utah. Here’s a key takeaway from those case studies:

The lessons learned in Utah is that projected uptake models and deployment plans don’t always come to fruition, and when that happens the consequence is failure.  For UTOPIA, the project was projected to reach 35% uptake rates by February 2008 but the reality was less than 17% uptake.  UTOPIA had also hoped for 17% uptake from lucrative business customers but the reality was only 2 to 3 percent.  Provo County’s iProvo was hoping for 10,000 subscribers by July 2006 with the assumption that 75% of those customers would subscribe to lucrative triple play services, but the reality was 10,000 customers in late 2007 with only 17% of those customers subscribing to triple play.  Many consumers were quite happy to subscribe to existing broadband cable or telecom providers.  The consistent theme in Utah was an overestimation of the uptake rates and the underestimation of competition from incumbent cable operator Comcast and telecom operator Qwest which led to consistent underperformance.

Ouch. For more details, see this old essay of mine about UTOPIA from 2008, and this piece from last Sept about iProvo. Not a pretty picture. As I say every time I pen a piece about the latest muni failure du jour, these case studies should serve as a cautionary tale about the dangers of grandiose, centrally planned broadband schemes. There is no such thing as a free lunch. Network-building is hard, and politicians usually aren’t that good at doing it.

For some time now here at the TLF, we have been documenting the track record of various government-owned or subsidized utility projects — municipal wi-fi projects, locally-owned telecom ventures, city or state fiber projects, and so on.  We’ve attempted to see if the rhetoric matches the reality when it comes to the grandiose promises made about government investment or ownership of communications or broadband networks being our ticket to high-tech paradise.

The results?  Well, the record speaks for itself.  It’s been one miserable failure after another.  And yet the high-tech pork barrel rolls on and taxpayers are all too often stuck picking up the tab.

I just wanted to make everyone aware of the fact that I finally got around to collecting most of our essays on the subject here into an “Ongoing Series” page that will be permanently housed here.  (As far as I can tell, we’re up to about 18 or 19 installments).  I encourage my TLF contributors to help me contribute entries to the series and I also invite our readers to continue to submit examples of these experiments so we can continue to document their failure.  Of course, if there are success stories, we’d like to hear about those too.  But that will likely be a much shorter series!

In my nearly 17 years of public policy work, I have never felt so vindicated about something as I did this weekend when I read Dan P. Lee’s Philadelphia magazine feature on “Whiffing on Wi-Fi.” It is a spectacularly well-written piece about the spectacular failure of Philadelphia’s short-lived experiment with municipally-subsidized wi-fi, which was called Wireless Philadelphia.  You see, back in April 2005, I wrote a white paper entitled “Risky Business: Philadelphia’s Plan for Providing Wi-Fi Service,” and it began with the following question: “Should taxpayers finance government entry into an increasingly competitive , but technologically volatile, business market?”  In the report, I highlighted the significant risks involved here in light of how rapidly broadband technology and the marketplace was evolving. Moreover, I pointed to the dismal track record of previous municipal experiments in this field, which almost without exception ended in failure. I went on to argue:

Keeping these facts in mind, it hardly makes sense for municipal governments to assume the significant risks involved in becoming a player in the broadband marketplace. Even an investment in wi-fi along the lines of what Philadelphia is proposing, is a risky roll of the dice. [… ]  the nagging “problem” of technological change is especially acute for municipal entities operating in a dynamic marketplace like broadband. Their unwillingness or inability to adapt to technological change could leave their communities with rapidly outmoded networks, and leave taxpayers footing the bill.

I got a stunning amount of hate mail and cranky calls from people after I released this paper.  Everyone accused me of being a sock puppet for incumbent broadband providers or just not understanding the importance of the endevour.  But as I told everyone at the time, I wasn’t out to block Philadelphia from conducting this experiment, I just didn’t think it had any chance of being successful.  And, again, I tried to point out what a shame it would be if taxpayers were somehow stuck picking up the tab, or if other providers decided not to invest in the market because they were “crowded-out” by government investment in the field.

But even I could have never imagined how quickly the whole house of cards would come crumbling down in Philadelphia.  It really was an astonishing meltdown.  Dan Lee’s article makes that abundantly clear:

The failure is clear: Almost a year after [Philly Mayor John] Street left office, the wireless network remains incomplete and underutilized.  The company hired by the city to make it happen has fled town and cancelled its paltry 6,000 customers’ accounts. Cities around the world that had planned to emulate the “Philadelphia model” have either given up or changed directions. And the architects of a recently announced 11th-hour plan to save the network have had to concede a central reality known from the start but somehow missed — or ignored — by journalists and everyone else eager to perpetuate the inspiring story of Philadelphia’s rebirth: that the technology at the backbone of it all was and remains incompatible with the notion of “wiring” an entire municipal landscape indoors and out. Worst of all, all these years later, the plan’s original selling point—bridging the so-called “digital divide” and getting all of Philadelphia online — seems as quixotic and unlikely as ever. There is, at least, a harsh object lesson to be taken from what went wrong. Not only did the Street administration swallow the… initiative hook, line and sinker, but so did most of the rest of us. Why?

Indeed, why did everyone buy it “hook, line and sinker?” The perils of municipal entry into risky businesses were well-known. And the inherent scale-based limitations of wi-fi were equally well-known.  But as Lee shows, right from the beginning in Philadelphia it was an article of faith that this thing was somehow going to work.  Dianah Neff, the lead architect of the plan, was passing out the Kool-Aid to anyone who was thirsty for more high-speed broadband, especially for the city’s underserved areas.  Everyone wanted to believe that the city was on the cusp of something really bold and futuristic. It became heretical to even question to the plan. As Lee notes:

Few journalists questioned the plan’s viability, or considered the dilemma our framing of the Philadelphia Renaissance Story as such posed: If wi-fi failed, wouldn’t the possibility of Philadelphia’s greatness suffer a mortal wound, too?

Indeed, that’s exactly the sort of attitude I experienced when journalists called to interview me about the plan.  It just wasn’t cool to be the skunk at the wi-fi garden party.  Comcast and Verizon, the city’s two leading broadband providers, also got plenty of grief for calling into question the specifics of the Wireless Philadelphia plan.  When they said the numbers didn’t add up and the technology wasn’t up to snuff, critics accused them of just trying to avoid increased competition.  Regardless of their intentions, their predictions were dead-on, as Lee notes:

The Comcast critique now seems stunningly prescient: Much of the business model’s calculations were based on faulty numbers and unrealistic expectations (i.e., 85,000 subscribers would join in the first year), and it ignored the need for technicians or service. The wi-fi technology, designed to make a contained space wireless, wasn’t geared for an entire city; the frequency couldn’t penetrate thick walls, or heights, or other obstructions. There weren’t adequate security considerations. There was nothing protecting the city should EarthLink — the Internet company the city forged an unprecedented alliance with —­ abandon the plan. By the time the network was up and running, new, more powerful “WiMax” technology (which Comcast and other companies are now actively pursuing) would be rising. Some on Council were duly skeptical. Then-Councilman Michael Nutter expressed repeated reservations about the city entering the domain of the private sector. Frank DiCicco wondered whether wi-fi was even a legitimate issue. But the most vocal critic, Councilman Frank Rizzo Jr., didn’t just feel that the government was reaching outside its bounds; he warned repeatedly that the program would eventually become the responsibility — financial and otherwise — of the city. “You didn’t need a CPA to see that this wasn’t going to work,” Rizzo says now. “But this effort to be this trailblazing technology city is what everybody got all caught up in.”

The Wireless Philadelphia plan serves as a cautionary tale of the limits of good intentions. There is no doubt that those who crafted and supported the plan had the best interests of the community in mind, but good intentions only get you so far in this world.  More specifically, even the best of intentions cannot trump the laws of economics and the fickle nature of consumer demand and technological change. Finally, as Lee’s amazing article concludes, there were other, more modest steps that Philadelphia could have taken to deal with the legitimate concern about under-served communities:

In the end, there’s no evidence that wi-fi has narrowed the digital divide, or will. If the goal truly was to spread Internet availability in impoverished areas, wouldn’t it have made far more sense to build computer centers in those neighborhoods, a plan bandied about in the early days of the administration but ultimately set aside for wi-fi? Could something so conventional, so unsexy, so obvious, actually have brought the city far closer to greatness?

Alas, techno-utopianism trumped pragmatic policies and sound economics.  Hopefully other cities are listening lest they fall into the same trap.

Boynton Beach, Florida’s experiment with municipal wi-fi has ended.  [Add it to the list of recent failures]. According to the South Florida Sun-Sentinel:

There’s a roadblock in Boynton Beach‘s information superhighway. The city’s Community Redevelopment Agency decided this month it has no more money for free wireless Internet service in its district.  Boynton Beach was the first city in Palm Beach County to offer Wi-Fi three years ago. It operated 11 “hot spots,” or access points, paying $44,000 annually for vendors to keep the system running. But the CRA dropped vendors who failed to meet their contracts. Other companies wanted to sell the Community Redevelopment Agency new equipment, but in a tough budget year, offering free wireless was no longer viable, said the agency’s executive director, Lisa Bright.  […]  “There is clearly no way for it to be a revenue generator at this time,” Bright said. “It’s premature for us to go to the next level.”

Whenever I read one of these articles about the small town or mid-sized town wi-fi experiments failing so miserably I have to admit that I am a bit surprised.  After all, many muni wi-fi supporters have argued that it is precisely in those communities where government support is most necessary and will be most likely to fill in gaps left by sporadic / delayed private broadband deployment.  Frankly, I always thought this was the best argument for muni wi-fi and it’s why I made sure to never go on record as opposing all government efforts, even though I am obviously a skeptic and don’t like the idea of wagering taxpayer money on such risky ventures. (By contrast, I could just never see the reason for government subsidies of wi-fi ventures in major metro areas with existing private broadband operators. Like Philly and Chicago.)

But the fact that many small town or mid-sized town wi-fi experiments are failing is really interesting because it must tell us something about either (a) the viability of the technology or (b) demand for such service.  Now, many municipalization believers will just say that clearly (a) is the case and argue that we just need to wait for Wi-Max solutions to come online and then all will be fine.  It certainly may be the case that Wi-Max will help boost coverage in low density areas, but is that really the end of the story?  What about demand?  What really makes me mad when I read most of these stories about current failed experiments is that they rarely give us any solid numbers about how many people utilized the services.  To the extent any journalists or analysts are out there contemplating a story or study on this issue, I beg you to dig into the demand side of the equation and try to find out how much of the currently muni-wifi failure is due to technology and how much is due to demand, or lack thereof.  Of course, government mismanagement could also be a culprit. But I suspect there is a far less demand for these services than supporters have estimated.