Cookie-cutter legislation

How a corporate bill mill plays into Montana politics–and why you should care



On Feb. 11, House Bill 315 came to the floor of the Montana House of Representatives. The measure sought to legalize the establishment of public charter schools in the state, and as added incentive for lawmakers, proponents pointed out that Montana is one of only eight states in the country that has yet to pass such legislation. What followed was a heated debate over the bill’s exemption of charter schools from state regulation and the glaring lack of technical qualifications required of charter school teachers.

In the middle of that discussion, HB 315 sponsor Rep. Austin Knudsen, a Republican from Culbertson, inserted a rather random defense. “In the committee hearing it was suggested that this is an ALEC bill,” Knudsen said. “It’s not. It actually comes from the National Alliance of Public Charter Schools.”

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The source of the proposal itself may seem insignificant compared to the impassioned arguments on both sides of the charter school issue. But Knudsen’s not-so-subtle attempt to distance his legislation from ALEC—the nonprofit American Legislative Exchange Council—speaks to a bigger story at play in statehouses across the nation. ALEC touts itself as a “nonpartisan public-private partnership of America’s state legislators, members of the private sector and the general public.” Critics question the third branch of that “partnership,” alleging ALEC is little more than a corporate “bill mill.” Hundreds of bills introduced by legislators in dozens of states over the years have all had one obsequious tie: They originated with ALEC. More specifically, they originated from the collaboration of lawmakers and corporate representatives brought together by ALEC for the purpose of drafting model legislation.

Knudsen put distance between HB 315 and ALEC for a good reason. The group has increasingly come under fire in recent years. Opponents of the charter school measure don’t just fear the bill would enable private for-profit corporations to fund unregulated educational institutions in Montana. They worry it marks yet another attempt by ALEC and its members to push a controversial national agenda in our state legislature.

The suspicion isn’t unfounded; a similar proposal, HB 603, was carried in the 2011 session by Rep. Mark Blasdel, the current House Speaker and a member of ALEC’s Education Task Force. Blasdel says he was asked to carry HB 603 by the Montana Family Foundation, whose partner organizations Alliance Defense Fund and the Family Research Council happen to have strong ties to ALEC.

“If folks are just going to basically scissor and paste ideas that come from a national organization funded by the right-wing Koch brothers to do harm to established institutions in Montana like, in particular, public schools, we have a big concern,” says Eric Feaver, executive director of MEA-MFT. “That’s what’s going on here. The most evidence of this is the charter school stuff. These bills didn’t get written on a desk here in Montana by anybody.”

ALEC was founded in 1973 by a clutch of Republican politicians around the core principles of small government, individual liberty and the free market. Today, the national nonprofit has become the target of increased skepticism by watchdog groups and the media, who have successfully tied ALEC to notable corporate interests including Koch Industries, led by controversial billionaire brothers Charles and David Koch. ALEC’s reach extends far beyond matters of public education. Model bills address topics as diverse as gun control, tort reform, abortion, voting rights, immigration and environmental regulation—always from a conservative standpoint. And Montana has seen its fair share of ALEC legislation, peddled exclusively by lawmakers on the right.

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“To some degree, I don’t know whether ALEC found them or they found ALEC,” Feaver says. “This is a chicken-and-egg thing. But certainly they work with each other, they feed off each other and they promote a common agenda nationwide. Maybe it gets amended here and there to look more like the locale in which the bill is introduced, but it’s clearly a national movement, it’s well-funded and it’s dangerous.”

ALEC’s broad agenda isn’t implemented at the federal level. It’s done state-by-state, capital-by-capital, legislator-by-legislator, and it’s passed off as grassroots policy with ALEC’s name rarely entering the conversation. Knudsen’s desire to distance HB 315 from ALEC shouldn’t surprise anyone. These days, any hint of ALEC’s fingerprints can bring proposed legislation a whole new level of scrutiny.

Last year, Pulitzer Prize-winning political cartoonist Mark Fiore teamed with the Wisconsin-based watchdog group Center for Media and Democracy to produce a spoof on the iconic Schoolhouse Rock bit “I’m Just a Bill.” The cartoon spins the simplistic message of how laws get passed in the United States into a scathing critique of ALEC, as narrated by a slick-talking, limo-riding, cigar-smoking roll of cash. The takeaway is pretty obvious: There’s a new way of enacting policy in this country, and it has little to do with the average citizen.

ALEC essentially works like this: Legislators, corporations, nonprofits and trade groups pay dues up front for inclusion in the ALEC network. ALEC members are slotted into one of numerous issue-oriented task forces, each co-chaired by one legislator and one corporate representative. During annual conferences or task force meetings, these members review legislation from various states or pitch their own policy ideas. Model bills get approved with legislators and corporations voting as equals, giving corporations a level of influence that mere lobbying doesn’t necessarily afford.

In July 2011, the Center for Media and Democracy launched an online database of roughly 800 pieces of model ALEC legislation. The group dubbed the project ALEC Exposed.

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  • Sen. Jeff Essman, R-Billings, is one of numerous Montana legislators tied to the American Legislative Exchange Council. He received a $1,005.47 scholarship in 2007 to travel to ALEC events, according to records compiled by the Center for Media and Democracy.

“Before the whistleblower contacted me with the bills, first of all, no one really had a sense of the breadth and depth of that agenda,” says CMD Executive Director Lisa Graves, who’s headed the ALEC Exposed project since its inception. “There are certainly some people in the states, legislators and others, who’d seen ALEC around the state legislatures or heard mention of them or, back a couple decades ago, seen some of ALEC’s public sourcebooks. But ALEC for the most part in recent years was trying to keep their fingerprints off of those bills in essence. So there were a number of bills that had been moving for many years—prison privatization bills…tort bills, education bills—that were introduced and that were ALEC bills but nobody realized were ALEC bills. When I looked at the model bills, I realized how extensive that influence was by ALEC.”

But what really shocked Graves was a separate document outlining the internal operations of ALEC, such as task force appointments. The document described exactly how ALEC fostered an environment in which public and private sector members had an equal voice and vote on legislation intended for later introduction in state capitals.

Some ALEC members are quick to wave off the mounting concerns nationwide. They commonly assert that ALEC is just another think tank seeking to educate citizen legislators on the basics of lawmaking and help them navigate a foreign system.

“We’re not paid professional politicians,” says Rep. Scott Reichner, R-Big Fork, and the ALEC chairman for the state of Montana. “As citizen legislators, what [ALEC] does is help you …These conferences you go to are informative, they educate you on what’s topical in different states so you don’t have to continually reinvent the wheel. Some of them educate you on leadership, how to work across the aisle, how to work better in a citizen legislator format so you’re not fighting all the time as parties but finding common ground.”

There’s more to it, though. ALEC typically hosts its conferences at posh resorts across the country, and corporations actually fund scholarships for legislators to attend. A list of past scholarship donors and recipients recovered by ALEC Exposed reveals a few interesting facts from Montana alone. Between 2006 and 2007, NorthWestern Energy paid $15,000 toward scholarships for numerous ALEC-affiliated state legislators. Pfizer paid $1,000 in 2006, the same year Peabody Energy ponied up $2,500. Legislators who received travel scholarships between 2006 and 2008 include Rep. Krayton Kerns of Laurel ($1,548.45), Rep. Wendy Warburton of Helena ($1,765.24), Rep. David Howard of Park City ($744.13), Sen. Verdell Jackson of Kalispell ($2,969.20) and Sen. Jeff Essman of Billings ($1,005.47), who is currently the senate president.

CMD has amassed a treasure trove of documentation on ALEC activity over the past two years, some of it from whistleblowers, some from public records requests, even some by sheer accident. But there are glaring gaps in the information publicly available on what goes on behind the scenes at ALEC. According to the nonprofit’s tax filings, membership dues only accounted for $97,321 in ALEC revenue last year. By comparison, “contributions, gifts and grants” brought in $7,759,834, leading critics to speculate that ALEC is bankrolled largely by corporate interests—which, of course, would be able to deduct such contributions due to ALEC’s 501(c)3 status.

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  • Last year, the Center for Media and Democracy teamed up with a political cartoonist to produce “ALEC Rock,” a spoof on the famous “I’m Just a Bill” bit from Schoolhouse Rock. In the spoof, ALEC is a slick-talking, limo-riding, cigar-smoking roll of cash.

“Most of the public doesn’t have a clue that that’s going on,” says Ed Bender, executive director of the Helena-based Institute for Money in State Politics. ALEC first caught Bender’s attention about a decade ago, when the group was backing a nationwide effort to privatize prisons. The strength of ALEC’s agenda waxes and wanes, Bender says, but it has found new life in recent years around a host of divisive regulatory and civil issues. Bender feels the real danger posed by ALEC’s model legislation is that pretty much all of it benefits the bottom line of for-profit corporations at significant expense to the taxpayer.

“They’re implementing a business plan, that’s all it is,” Bender says.

In 2002, the Natural Resource Defense Council published a collaborative report with Defenders of Wildlife titled “Corporate America’s Trojan Horse in the States: The Untold Story Behind the American Legislative Exchange Council.” In it, the environmental groups highlight growing concerns over the corporate ties that define ALEC. Citing thousands of pages of financial documents and tax returns, the NRDC claimed “corporations and trade associations finance virtually all of ALEC’s activities.” At the time, the NRDC found one of ALEC’s biggest underwriters to be energy mogul Enron Corp. The NRDC alleged that corporations, through ALEC, “mount a wide-ranging assault against laws safeguarding public health and the environment,” primarily through model legislation.

Additional information uncovered by Greenpeace revealed heavy financing of ALEC on the part of Koch Industries. Other groups who have launched critical reports on ALEC include the American Association for Justice, Center on Juvenile and Criminal Justice, People for the American Way, Common Cause, ProPublica and Truthout.

The criticism doesn’t surprise Reichner. But he downplays the corporate prominence at ALEC, equating it to little more than another example of the type of lobbying done on behalf of special interests at other quasi-governmental conferences, political events and in Helena. Lobbying is a big part of contemporary policymaking, he says.

“Corporate sponsorship is relevant in any organization that’s out there. They have their lobbyists that are trying to push their particular agenda, and whether it be at an event or up here at the Capitol … lobbyists are a pretty common thing,” Reichner says. “They’re paid to push whatever agenda they’re supposed to be pushing.”

One of the biggest questions raised by ALEC critics is whether the group’s own actions legally constitute lobbying activity. As a nonprofit, ALEC hasn’t registered or disclosed any lobbying expenditures with the Internal Revenue Service. The most serious challenges to ALEC’s credibility have come in the form of several complaints to the IRS. Last year, a group of progressive church ministers from Ohio known as Clergy VOICE filed a complaint against ALEC alleging improper lobbying activity and failure to comply with public charity requirements. The Clergy VOICE letter came on the heels of another IRS complaint against ALEC filed by Common Cause challenging the legitimacy of ALEC’s charitable status. ALEC has repeatedly brushed off such claims, stating it plays no role in lobbying state legislators on policy and dismissing groups like Common Cause as nothing more than left-wing troublemakers.

There was a lot of talk across the country in 2011 about a host of state-level initiatives aimed at challenging the Environmental Protection Agency’s regulatory authority over greenhouse gas emissions. Scores of Tea Party activists used the issue as a sounding board for their broader push to gut the EPA entirely. In Montana, Sen. Jason Priest, R-Red Lodge, introduced a joint resolution to prevent the EPA from regulating emissions in Montana and urge President Obama to conduct a nationwide analysis of the impacts of such regulations on the economy.

The Tea Party agenda largely overshadowed the question of where these EPA challenges actually originated. The answer can be found on the ALEC Exposed website under the title “Resolution in opposition to EPA’s plan to regulate greenhouse gases under the Clean Air Act,” a bill that, among other things, stresses the “economic burden to America.” The language isn’t verbatim; Priest’s bill offers an extensive list of localized facts. But the proposal’s end-goal fits neatly within ALEC’s agenda, and ALEC isn’t always as simple as copied-and-pasted phrases.

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“There are a lot of ways in which they can deny how it was transmitted to them, but we basically say, if it looks like a duck and quacks like a duck, it’s a duck,” says Lisa Graves with CMD. “If it miraculously has some of the same language or the same operative terms, we can certainly say it advances the ALEC agenda.”

Rep. David Howard, R-Park City, carried several pieces of immigration reform in the Montana Legislature this winter. Two in particular show flagrant signs of outside influence. The first, HB 297, would make it explicitly illegal for Montana businesses to knowingly employ unauthorized aliens. The second, HB 50, would prohibit local governments from enacting “immigration sanctuary policies.” That phrase is eerily similar to the title of a model bill from ALEC’s playbook.

Both of Howard’s proposals, in fact, boast a significant amount of interchangeable language with ALEC’s “No Sanctuary Cities for Illegal Immigrants Act.” HB 297 mimics the ALEC model in making it a misdemeanor to knowingly file a false or frivolous claim stating that an employer has intentionally hired an unauthorized alien. In defining immigration status, HB 50 employs the phrase “lawful or unlawful” status in place of “legal,” the same word choice offered in ALEC’s model. (See sidebar above.)

Upon transmittal to the state Senate, HB 50 was amended to replace “sanctuary policies” with “anticooperation policies.”

ALEC’s anti-sanctuary policy model draws significant inspiration from the controversial Arizona SB 1070, the Support Our Law Enforcement and Safe Neighborhoods Act signed into law in April 2010. The Arizona law prompted protests and boycotts by civil rights activists who saw the push to mandate local enforcement of federal immigration law as nothing short of racial profiling. Even the U.S. Department of Justice took issue, filing a legal challenge over the constitutionality of the measure.

The examples in Montana pale in comparison to a legislative slip-up in Florida a year back. In November 2011, Republican Rep. Rachel Burgin carried a resolution that called on the federal government to reduce corporate taxes. Burgin, as well as the resolution’s drafters, failed to notice that the measure still contained ALEC’s mission statement when it was first introduced. One paragraph read “Whereas, it is the mission of the American Legislative Exchange Council to advance Jeffersonian principles of free markets, limited government, federalism and individual liberty...”

Burgin quickly withdrew the resolution, removed the ALEC reference and re-introduced it 24 hours later under a new bill number.

Identifying ALEC-affiliated legislation isn’t necessarily a practice in recognizing plagiarism. Bills often go through extensive rewrite processes not just to cleanse them of ALEC’s fingerprints but to localize their significance and tailor their language to the specific style of an individual state legislature. What you have to look for, according to Graves, are the key provisions contained in the ALEC model. A prime example is the widely criticized “stand your ground” law, which has swept across the country since its initial introduction in Florida in 2005. The bill, contained in what Graves calls the “ALEC playbook,” takes the principles of the Castle Doctrine—the ability to use lethal force to defend one’s home from an imminent threat—and applies them to altercations in public settings. In essence, it makes it easier for people to shoot other people in self-defense without facing legal retribution.

There are three basic provisions in ALEC’s “stand your ground” model. The first establishes the right to use lethal force in self-defense outside a home. The second shifts the burden of proof to the prosecution in shooting deaths where lethal force is claimed to have been justified. The third provision protects the shooter from civil retribution.

Rep. Krayton Kerns led the charge to modify Montana’s Castle Doctrine back in 2009. Among the key changes he successfully sponsored was a provision to shift the burden of proof in self-defense cases to the prosecution, as well as a measure to allow the brandishing of a weapon in public places as a deterrent for physical harm. While the language doesn’t match up with ALEC’s bill, part of Kerns’ proposal would still pass Graves’ sniff test as being ALEC-inspired.

“The lawmakers will sometimes say, ‘I didn’t get it from ALEC. It’s not an ALEC bill,’” Graves says. “What we know is they didn’t wake up one morning and suddenly create a bill that magically had the same three provisions. We don’t know always who put what bill in whose hands. Sometimes the bill goes to a senior lawmaker who gives it to a junior lawmaker to introduce it. Sometimes the NRA lobbyist is there helping to get it in their hands, saying it’s part of the ALEC playbook.”

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  • Watchdog groups tied ALEC to hundreds of state-level politicians, including more than two dozen past and present Montana representatives and three past and present Montana senators.

Critics have tied ALEC to the rapid proliferation of “stand your ground” legislation nationwide. The group does, in fact, have a model bill similar to legislation passed in Florida in 2005, and the National Rifle Association has long been an ALEC member. But ALEC’s support for “stand your ground” laws backfired last April in the wake of the shooting death of Trayvon Martin, a black teen in Florida. ALEC had already been called out for its push to disenfranchise voters through legislation like the Voter ID Act, and the group’s sudden tumble into a Second Amendment debate dug the hole deeper.

Widespread criticism and increased public awareness—what Graves calls the “disinfectant of sunshine”—prompted scores of corporate ALEC members to jump ship. Coca-Cola backed out, as did Procter & Gamble, Kraft, McDonalds, Blue Cross Blue Shield and General Motors. The Center for Media and Democracy estimates that in the past year, 46 corporate members and four nonprofits have cut their ties with ALEC.

So have 71 legislative members nationwide. Rep. Mike Colona, a Democrat from Missouri, had this to say about his split from the group: “Their agenda is radical and wrong for Missouri. I was a member and saw firsthand the sort of extreme legislation they push on state legislators around the country.” Sen. Rick Jones, a Republican from Michigan, told the Detroit News shortly after terminating his membership that “although there’s nothing wrong with it, I thought [attending ALEC conferences] would be looked at by my constituents as a junket.”

None of Montana’s ALEC member legislators have publicly severed their ties to the group. On March 6, ALEC leaders in the Montana Legislature held a lunchtime recruitment meeting at the Capitol in Helena. A flyer advertising the meeting listed the point of contact as Ron Devlin, a lobbyist for NorthWestern Energy.

Rep. Blasdel refers to himself as an ALEC member “in name only.” While he holds a position on the nonprofit’s Education Task Force, he says he’s attended only one conference during his four terms in office. Even then, he went simply because he was already in Washington, D.C., for a separate, bipartisan school reform convention.

“For me, it doesn’t mean much,” Blasdel says of his ALEC membership. “Obviously there’s been talk of model legislation, but the reality is no matter where the idea comes from, it still has to be vetted by the full legislative process. I don’t think you have an upper hand on any legislation, because you still have to work through the process and have it fit with Montana laws.”

Blasdel adds it’s imperative that legislators take advantage of all available resources in drafting policy to avoid “reinventing the wheel.” Not every idea is a good fit for Montana, Blasdel says. It’s a lawmaker’s job to listen to constituents, look at all legislative solutions and “analyze who are the winners and who are the losers.”

One of those winners, in Blasdel’s mind, is the charter school proposal. He originally introduced the bill in 2011. He would have carried the issue again this session as well, but says he felt his duties as the new House Speaker wouldn’t afford him enough time. Instead, he asked Knudsen to sponsor it. The bill needed serious revision the first time around, Blasdel says. Although critics connected a successful charter school bill in Georgia last year to the ALEC model—literally word for word in places—Blasdel denies the bill he orginally introduced has any ties to ALEC.

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  • Rep. Mark Blasdel, the current House speaker, introduced a bill in the 2011 Montana Legislature to establish charter schools in the state. Critics believe the bill originated with ALEC. Blasdel, who sits on ALEC’s Education Task Force, denies the allegation and says he’s an ALEC member “in name only.”

But another education reform bill Blasdel carried at the request of the Montana Family Foundation in 2011 was, by all appearances, ripped straight from the ALEC library. The bill would have established a special needs scholarship program for non-public schools, effectively incentivizing enrollment of disabled students in private schools and driving them away from the regulatory protections of the Individuals with Disabilities Education Act. Similar pieces of legislation have cropped up in Georgia, Florida and Wisconsin, all of them bearing strong resemblance to an ALEC model bill.

ALEC Exposed has managed to confirm the membership of 25 past and present Montana representatives, as well as three sitting state senators and two past senators. There’s no easy way of knowing how many pieces of ALEC legislation have passed through the legislature over the years. But Rep. Reichner insists the process of drafting those model bills is perfectly public.

“Where do they come up with it? They come up with it from the different states,” Reichner says. “If a guy does a great job on an area like Medicaid reform, they’re going to go talk to that legislator and find out what they did and then try to write some model legislation that works in other states. The work comp issue I did, they brought me in and said, ‘Would you please come and do a presentation on what you did in Montana.’ I said, ‘Absolutely.’”

Furthermore, Reichner doesn’t believe ALEC differs all that much from other national legislative organizations like the Council of State Governments and the National Conference of State Legislatures. Both host lavish conferences for state lawmakers, and both expose those lawmakers to the deep-pocketed influence of corporate lobbyists. Reichner says those groups play “a big role” in state government nationwide.

“It’s part of our education,” Reichner says. “ALEC just happens to be more conservative.”

The online news site Truthout published a four-part series last July centering on what it called “the other ALECs.” The stories focused on the infiltration of bipartisan trade associations by “stealth lobbyists” seeking to advance corporate agendas, and cited a “Nightline” piece from October 2010 about the schmoozing of state legislators at NCSL events. Nightline’s investigation uncovered a rash of lobbyist influence in the form of wild parties, lavish dinners and even a golf outing during which Alabama Rep. Artis J. McCampbell replied to a student journalist’s questions by pulling a golf club out of his bag and saying, “If you don’t want me to take this to you, then leave.”

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  • In 2011, a whistleblower handed the Center for Media and Democracy more than 800 model bills developed by ALEC over the past 30 years. Several of the bills turned over to the CMD bear a striking resemblance to legislation introduced in Montana over the years.

True, Graves says, there’s a lot of lobbyist schmoozing orbiting such events. But after-hours wining and dining is a far cry from sitting around a table and voting on model legislation as equals.

“What’s different about ALEC is that during the day, these lobbyists are actually voting as equals behind closed doors with legislators on these bills,” Graves says. “NCSL does not have a procedure by which corporate lobbyists have an equal vote in these task forces. They aren’t voting on bills. Whatever they may be doing in the evenings as far as trying to schmooze and booze lawmakers ... they’re not actually granted ‘an equal voice and an equal vote,’ in the words of ALEC, to weigh in on the legislation. I think that’s a significant difference.”

Just the fact that the internal workings of ALEC were largely a mystery until watchdog groups began pushing in recent years seems to suggest the group has something to hide. The abrupt migration last year of corporate and legislative members away from ALEC—and, on a smaller scale, Rep. Knudsen’s denial that his charter school bill was based on an ALEC model—indicates a desire for distance from growing controversy.

“They only come up when there’s a high-profile case like that,” Bender says, referring to ALEC’s “stand your ground” controversy. “Otherwise, they are absolutely down in the weeds.”

Regardless of the stigma, ALEC continues to push these corporate-backed model bills with impunity. And ALEC will no doubt continue the practice as long as there are corporations forking over cash for a chance to influence state policy. The latest flurry of legislation from the ALEC playbook centers on disclosure of chemicals used in the fracking process, offering a broad exemption for any chemicals claimed as trade secrets. ALEC has also been tied to the proliferation of right-to-work laws. Last year, Michigan became the 24th state to enact such legislation, which undermines labor unions by allowing non-union members to benefit from union representation without having to pay dues. The language in the Michigan bill contained numerous similarities to the ALEC model, as did a right to work measure introduced in the Pennsylvania Legislature this year.

Just prior to Montana’s 2013 legislative session, Sen. Art Wittich, a Republican from Bozeman, requested a draft bill to “allow right to work” in Montana. The draft is still on hold.

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