ALEC and State Legislatures
- Saturday, 07 December 2013
ALEC’s Influence over Lawmaking in State LegislaturesThe goal of this article is to begin to fill the gap in our knowledge. Given the pervasive gridlock in Congress, key legislative change is occurring predominantly in the states. It is, then, all the more important to know who is affecting which bills are introduced in the state legislatures, and which bills pass. Using text analysis, I find where bills based on ALEC model legislation are introduced in the statehouses during the 2011-2012 session and track their progress in the legislative process.
My findings are threefold. First, ALEC model bills are, word-for-word, introduced in our state legislatures at a non-trivial rate. Second, they have a good chance – better than most legislation – of being enacted into law. Finally, the bills that pass are most often linked to controversial social and economic issues. In the end, I argue that this is not good for ALEC, its corporate partners, or for the democratic process.
About ALECThe American Legislative Exchange Council (ALEC) is a national policy organization that “provides a constructive forum for state legislators and private sector leaders to discuss and exchange practical, state-level public policy issues.” (ALEC website). ALEC members, including state legislators and corporate representatives, meet in task forces on specific issue areas (i.e., environment and energy, worker’s rights, etc.) and collaborate to write model legislation. Once the task force completes a model bill it is approved by the ALEC membership and governing board. Once bills clear those hurdles, they become official ALEC “model policies,” which are disseminated to state legislators.
ALEC is notoriously secretive about the process by which members draft and approve model legislation. A recent Washington Post article by Dana Milbank detailed the closed-door policy at ALEC’s annual policy summit. My own attempts to contact ALEC staff in order to understand the model bill drafting process were unsuccessful.
ALEC does list on its website all official ALEC policies (though it does not say – and representatives claim not to have collected – information on where those policies have been introduced in the states). However, there is reason to believe that the list is incomplete. The ALEC board reviews the status of every piece of model legislation every five years, and adds and removes model bills from the website periodically. It is not surprising, then, that the Castle Doctrine (a.k.a. Stand Your Ground) was removed from the ALEC website following the public scrutiny that arose during the Trayvon Martin trial.
Thus, obtaining a complete list of ALEC model bills and their rates of introduction and success in the U.S. statehouses requires a nuanced data collection strategy.
Methodology:As discussed in the previous section, ALEC’s public list of model bills is not complete – and may include some of their most controversial and influential bills. Rather than relying on the organization’s own list, I turned to a third party website: ALEC Exposed. ALEC Exposed, a subsidiary of PR Watch, tracks all ALEC activity and keeps a list of the most significant ALEC model legislation approved between 2010 and 2013. From the ALEC Exposed database, I collected information on the 169 model bills that they tag as most significant, covering each of the nine ALEC task force areas.
Using the text from those169 model bills, I used Boolean string searches in LEXIS to find bills with the same language that were introduced in the 2011-2012 legislative session. In total, I recovered 132 bills. I then coded a variety of features of those bills including their state and chamber of origin, sponsors’ party identification and connections to ALEC, and legislative history.
ALEC Bills IntroducedDuring the 2011-2012 legislative session, 132 bills based on ALEC models were introduced in the states. Democrats sponsored nearly 18% of those bills, while Republicans sponsored more than 81% (one bill was introduced by a joint committee, and, thus, does not have a single sponsor). Nearly two-thirds of those bills were introduced in state lower chambers, while only 34% were introduced in upper chambers. Of those legislators who sponsored ALEC model legislation, 57% can be explicitly connected to ALEC. However, that does not necessarily preclude the other legislators from having ALEC ties; ALEC does not disclose the names of their legislative members, so this figure is based primarily on information from leaked documents.
ALEC model language appeared in bills in 34 states (see Figure 1). Those bills were most common in West Virginia, where legislators introduced 10 bills based on ALEC model legislation. Both the Oklahoma and Mississippi legislatures considered nine ALEC bills, Arizona eight, and Kansas and Montana saw seven apiece.
One feature that separates ALEC from other lobbying ventures is that it partners with corporations whose interests span the space of conservative issues. This is reflected in the fact that legislation introduced based on ALEC models covers a variety of seemingly-unrelated subjects (see Figure 2).
Most common were bills pertaining to immigration and the environment, followed by those relating to guns and crime. The now-infamous Castle Doctrine Act was introduced in nine chambers and was, thus, one of the more common pieces of ALEC legislation to appear in the statehouses. The five most common ALEC model bills introduced in the state legislatures include:
|Table 1: Top 5 ALEC Model Bills Introduced in the States|
|ALEC Model Bill||# of States Introduced||Description|
|No Sanctuary Cities for Illegal Immigrants Act||23||Closely resembles Arizona’s SB1070 law in that it mandates local law enforcement of federal immigration law, and allows private citizens to sue their local government if they feel the law is not being fully enforced. In addition, it further criminalizes the employment of illegal immigrants, and creates a crime of “trespassing” on state land without immigration status, and a crime of having an illegal immigrant in one’s vehicle, among other provisions.|
|The Disclosure of Hydraulic Fracturing Fluid Composition Act||10||Requires the disclosure of fluid used in the production of natural gas through hydraulic fracturing. It would also allow operators not to disclose any materials that are considered a “trade secret” or present incidentally in the hydraulic fluid, and would limit the ability of individuals to challenge a the operator’s claim to trade secret protection.|
|Castle Doctrine Act||9||Also commonly referred to as “Stand Your Ground” legislation, this act authorizes the deadly use of force against an intruder in a residence or vehicle. It declares that a person has a right to stand his or her ground under reasonable fear of great bodily harm. It also reduces the grounds under which law enforcement may investigate the use of deadly force under these circumstances.|
|ALEC State Withdrawal from Regional Climate Change Initiative||
|Declares the lack of benefit to reducing carbon emissions in the state that would adopt it, and would provide that state reasonable cover to withdraw from a regional climate initiative.|
|Consistency of Firearm Regulation||9||Prohibits local jurisdictions from independently enacting restrictions on the possession of firearms. This bill would also preempt the right of local jurisdictions to bring certain civil actions against firearms or ammunition manufacturers, trade associations, and dealers.|
Of the 132 ALEC model bills introduced, 12 were enacted. One additional bill passed the New Hampshire legislature only to be vetoed by the governor. Now, a success rate of 9% may not seem high upon first glance. However, consider the fact that, in the 112th session of the U.S. Congress, less than 2% of introduced bills passed. That means that bills based on ALEC policies have a survival rate nearly 5 times that of the average bill in Congress.
Table 2 summarizes the ALEC policies that were passed in the 2011-2012 session. Republicans sponsored all of the enacted bills, and 7 of those sponsors have explicit ties to ALEC. Two states – Pennsylvania and Oklahoma – passed the Castle Doctrine. Though the modal ALEC bill introduced in the states was the No Sanctuary Cities for Illegal Immigrants Act, only Alabama passed it.
|Table 2: ALEC Bills Enacted|
|Enacting State||ALEC bill||Sponsor||Known ALEC Tie?||Description|
||Alabama||2011 H.B. 56||No Sanctuary Cities for Illegal Immigrants Act||Rep. Micky Hammon (R)||-||See Table 1.|
|Arizona||2011 S.B. 1546||Eminent Domain Authority for Federal Lands Act||Senator Al Melvin (R)||Yes||Increases the state government’s ability to appropriate federal lands (such as wilderness areas or national parks)|
|Arizona||2012 H.B. 2503||Regulary Compliance Congruity with Liability Act||Rep, Kimberly Yee (R)||Yes||Increases protection for corporations in product liability suits, and adopts a presumption in favor of the corporate defendant when it can show compliance with governmental standards.|
|Kansas||2011 S.B. 9||Discovery of Electronically Stored Information and Limitations on Waiver of Attorney-Client Privilege||Judiciary Committee||-||Limits the ability to produce electronically-stored information during discovery.|
|North Carolina||2011 H.B. 542||Regulatory Compliance Congruity With Liability Act||Rep. Johnathan Rhyne (R)||Yes||Increases protection for corporations in product liability suits, and adopts a presumption in favor of the corporate defendant when it can show compliance with governmental standards.|
|North Carolina||2011 H.B. 650||Consistency of Firearms Regulation Act||Rep. Mark Hilton (R)||-||See Table 1.|
|Oklahoma||2011 S.B. 704||Class Actions Improvement Act||Senator Constance Johnson (R)||Yes||Limits individual’s ability to bring class action suits against large companies by specifying that class action suits cannot seek any monetary relief, and restrict the ability to bring a class action suit with plaintiffs from multiple states.|
|Oklahoma||2011 H.B. 1439||Castle Doctrine Act||Rep. Steve Vaughan (R)||Yes:Yes||See Table 1.|
|Pennsylvania||2011 H.B. 40||Castle Doctrine Act||Rep. Scott Perry (R)||-||See Table 1.|
|Tennessee||2011 H.B. 1030||Virtual Public Schools Act||Rep. Harry Brooks H (R)||Yes||Requires “virtual” or online schools be recognized as public schools and given equal resources as other public schools in the state.|
|Texas||2011 H.B. 3328||The Disclosure of Hydraulic Fracturing Fluid Composition Act||Rep. James Keffer (R)||Yes||See Table 1.|
This research shows that the American Legislative Exchange Council wields considerable influence in state legislatures. The bills that it writes find their way into the majority of state legislatures. Moreover, the percentage of those bills that pass is strikingly high compared to the dismal rate at which all other bills are enacted into law.
In the midst of this success, recent controversy over particular ALEC-inspired bills – such as the Castle Doctrine Act (a.k.a. Stand your Ground) – has caused the organization to come under increased scrutiny from journalists, transparency groups, and voters. As a result, almost 400 legislators and 60 corporations have cut ties with ALEC in the last two years, with some now publicly repudiating the organization’s methods.
Many of ALEC’s prominent (former) corporate partners, such as Wal-Mart, General Electric, and McDonald’s, were almost certainly displeased with the negative publicity and media criticism sparked by ALEC’s foray into hot-button issues like gun control. That involvement damages ALEC’s reputation, hindering their typical (corporate-friendly) efforts surrounding manufacturing regulations, court procedures, and environmental laws. ALEC’s corporate partners are paying to influence legislators over those issues, which they want introduced and passed quickly and quietly. Dirtying its hands with social issues undermines ALEC’s ability to exercise influence over fiscal ones.
This has broader implications for how we think about lobbying. Consolidation of lobbying groups into broader organizations of legislators and corporations increases their reach but also creates significant hazards. Attempting to tie together such a wide range of interests undermines the ability of the umbrella organization to achieve any of its objectives. The bigger you get, the more likely it all is to fall apart. ALEC’s Napoleonic reach may turn out to be its undoing.
This article was researched and written by The Brookings Institute. Both CMD’s Sourcewatch and Firedoglake identify Brookings as a once-liberal now-conservative think tank, with FDL stating “it has become the Alan Colmes of think-tanks, fake liberals who meekly accept conservative mythology on every major point, but says we should at least think of the misery we are causing.”
The author credits ALECexposed for a lot of the information used in the article. I want to note that ALECexposed is still the source I use regularly to verify and cross-check information that I have researched. Its Sourcewatch articles are, IMHO, the best.
This article is written by Molly Jackman with research assistance from Grace Wallack and Brian Boessenecker. It is posted by the Brookings Institute at http://tinyurl.com/mw5bog6