Alan Greenblatt is a GOVERNING correspondent.E-mail: email@example.com
For many years, the state of Ohio has put its convicts to work making furniture. This not only gives the prisoners something productive to do with their time but supplies state offices with desks, chairs and other furnishings. Now, in the age of the Internet, the prisoners' work products are up for sale on the Web, available to anyone, not just state agencies. That expansion of the customer pool drew the attention of state Representative Steve Buehrer, who decided he wanted to stop it. "To me, they've crossed the line--they've opened a furniture store," Buehrer says. "I think the government ought not to be running enterprises that compete with the private sector."
So Buehrer introduced legislation to block state agencies from offering any service or information on the Internet that was also provided by two or more private companies. In fact, though, the bill wasn't entirely his idea. It was based on legislation drafted by the American Legislative Exchange Council, better known by its acronym, ALEC.
All over the country, ALEC has been promoting the idea that state governments are overstepping their intended missions by offering Internet services in direct competition with private business. States allow citizens to complete their tax returns on public Web sites, for instance, or offer them free e-mail accounts, as Pennsylvania does. ALEC is against that. It drafted model legislation addressing the matter, which, in turn, was introduced by Buehrer and legislators in about half a dozen other states.
Model legislation is the core of what ALEC does. Founded in the early 1970s as a conservative counterweight to the mainstream National Conference of State Legislatures (NCSL), ALEC now boasts the participation of more than 2,400 legislators--nearly one-third of all legislators nationwide. That includes 125 floor leaders, among them three dozen speakers and speakers pro tempore and 25 state Senate presidents and presidents pro tempore. But the group boasts much more than a fancy masthead. Hundreds of bills initially drafted at ALEC meetings become law in the states every year.
The organization bills itself as bipartisan, but about 80 percent of its members are Republicans, and that makes a big difference, because Republicans have a working majority in many more states now than they did a few years ago (nationally, GOP legislators outnumber Democrats this year for the first time in half a century).
ALEC also counts as members some 270 representatives of trade associations, conservative foundations and many of the largest corporations in America. Interest groups are involved in other legislative organizations, such as NCSL and the Council of State Governments, but there they don't enjoy the kind of influence ALEC gives them. ALEC has standing task forces composed of both legislators and private-sector representatives. The private-sector folks help draft and have a veto over any proposed legislation that the task forces create. "ALEC is unique in the sense that it puts legislators and companies together and they create policy collectively," says Oklahoma state Representative Scott Pruitt, an ALEC task force chair. In Pruitt's opinion, the regular legislative process doesn't allow for enough time listening to business. "The actual stakeholders who are affected by policy aren't at the table as much as they should be," he says. "Serving with them is very beneficial, in my opinion." ATTRACTING IMITATORS
ALEC's nine public-private task forces put forward draft legislation that gets introduced in the states at a rate of about 1,500 bills a year. On average, more than 200 of those bills are enacted into law every year. "You've had the interest groups having access and sitting on other task forces, but here you've really perfected it," says Rutgers University political scientist Alan Rosenthal, author of a book on lobbying in the states. "You've not only got them gaining access and interacting with legislators but you have them shaping policy together. It seems to me that's a pretty major advance." Liberal legislators feel the same way, although they are more likely to describe ALEC's growing role as a threat rather than an advance. Recently, several progressive groups have been set up as a direct counterweight to ALEC's agenda of promoting the free market and limited government. "We need to build an ALEC for our side," The Nation editorialized a couple of years ago, and the left has responded.
This summer, a consortium of major labor unions, environmental organizations and public interest groups set up the Partnership for Public Trust to keep an eye on ALEC and the progress of its model legislation. Groups of legislators have formed themselves into coalitions to fight ALEC on a regional basis or in a specific policy area. Several other groups, patterning themselves on the ALEC model, have fashioned themselves as ideological alternatives, crafting and promoting model legislation more to their own liking. "It took progressives a while to realize what the hell was going on," says Leon G. Billings, a former Maryland legislator. "Conservatives have lots of money to propagate their viewpoint and the left doesn't."
One of the new groups, based in Madison, Wisconsin, cheekily calls itself ALICE, short for the American Legislative Issue Campaign Exchange. "We like to think of ALICE as ALEC's feistier, more aggressive little sister," says director Andy Gussert. But it's doubtful whether ALICE, which just got underway a couple of months ago, can be fairly described as feistier or more aggressive--or more anything--than ALEC. Several similar groups are better established than ALICE, but they can't come close to matching ALEC's penetration into the legislative ranks or productivity in creating new laws.
The groups on the left are at a disadvantage because of ALEC's enormous fundraising capacity and 30-year head start in attracting members. ALEC's annual budget is $6 million, which is supplemented by expenditures from private sector members who provide campaign contributions and "scholarships" that cover travel expenses for legislators attending ALEC functions. Legislators pay just $50 for a two-year membership, but businesses pay up to $50,000 to join. "You have to recognize that because ALEC is funded by profit-making industries, they have tremendous resources at their disposal," says Julian Zelazny of the State Environmental Resource Center, one of the critics. "You can sum all these groups together and our budgets still won't come anywhere near to being a fraction of ALEC's." FOCUS ON REGULATION
ALEC was founded, somewhat ironically, by conservative activists and legislators who believed the right needed a voice at the state level to counter better-organized liberals. "I always look at what the enemy is doing and, if they're winning, copy it," ALEC founder Paul Weyrich said a decade ago. The group attracted only 27 legislators to its first conference, but its early membership included many figures who became prominent later as governors or members of Congress.
Initially, the group concentrated on social issues such as abortion and the Equal Rights Amendment, both of which it opposed. But in recent years, as Congress and the courts have devolved greater authority to the states, ALEC has focused on business and regulatory matters. It produces bills that cover taxes and spending, energy, health, education, insurance, labor, telecommunications and the environment. And it has recorded a long list of successes:
While nearly all states have been strapped for cash this year, ALEC has opposed a federal bailout, arguing that state governments had worked themselves into fiscal crisis through excessive spending. The group has provided background material and talking points to help stiffen the backs of legislators resisting tax increases--including increases proposed by conservative Republican governors who once belonged to the organization. In addition, ALEC is promoting moves in GOP-controlled states to restructure government agencies to cut workforces and privatize more functions. It is encouraging legislators to abolish Medicaid's entitlement-based benefit structure.
At the same time, ALEC has sponsored a flood of land-use bills, covering both environmental regulation and defense of private property. Its best-known bill in this area is the Environmental Audit Privilege and Immunity Act, which shields private companies from liability for environmental violations that the companies report themselves. Versions of this bill have become law in half the states, although at least three states have seriously amended their bills in response to federal concerns.
Many ALEC members say there is more conflict within the organization among the businesses involved than among legislators, with competing companies constantly maneuvering for advantage. That was especially true in the 1990s in the case of electricity deregulation. Enron took a leading role within ALEC in pushing for deregulation, which eventually led the Edison Electric Institute, a utilities trade association, to withdraw its membership. As it turned out, Enron's position prevailed in many states as well. An ALEC bill provided the framework for electricity restructuring laws that have been enacted in nearly two dozen states.
ALEC has been a major force behind both privatizing state prison space and keeping prisons filled. It put forward bills providing for mandatory minimum sentences and three-strikes sentencing requirements. About 40 states passed versions of ALEC's Truth in Sentencing model bill, which requires prisoners convicted of violent crimes to serve most of their sentences without chance of parole. "What makes ALEC different is its effectiveness in not just bringing the people together but selling a piece of legislation that was written by the industry and for the industry and selling it as a piece of mainstream legislation," says Edwin Bender, executive director of the National Institute on Money in State Politics.
In many ways, Steve Buehrer's bill limiting state commerce on the Internet was typical ALEC legislation. It was pro-market and reflected a suspicion of government power. Like most bills drafted by the organization, it was introduced by a key ALEC member. Buehrer, an ALEC state co-chair, was named a "Legislator of the Year" by the group last year.
ALEC's critics claim that Buehrer moved in typically stealthy ALEC fashion. He inserted his bill, without a hearing, into the House version of the state budget. Still, he drew plenty of opposition from people concerned that if private companies could shut down the government's ability to put materials on the Web, they would profit unfairly from public information. A group of law librarians, for example, warned that courts could not put their records and decisions on the Web if publishers such as Westlaw and Lexis beat them to it. Buehrer dismissed these concerns as "paranoia." Nevertheless, the controversy his proposal generated--the Cleveland Plain Dealer called his furniture sales concerns "simply asinine"--sent his bill to the back burner. MEETING OF MINDS
ALEC's critics are hoping that failures such as Buehrer's can provide them with a new model. They believe they can fight the ALEC machine through the simple means of exposing the group's bills to greater scrutiny than they've received in the past. Allowing industries affected by legislation to write the legislation, they say, is going too far, and once the voters hear about this, they will agree. "It doesn't take rocket science to figure out that if you fly legislators to exotic locations and spoon feed them legislation to introduce in their state that you're going to be effective," says Wisconsin state Representative Marc Pocan. ALEC's success is prima facie evidence, he and other critics believe, that the group gives an unfair advantage to its participating corporations and their lobbyists.
Members of ALEC reply that their group is simply one more forum among many in which they can meet with like-minded colleagues and listen to the concerns of businesses and other groups that they would hear from anyway, even if the organization never existed. "ALEC has never been intended to supplant the legislative process," says Ray Allen, who chairs the Texas House Committee on Corrections and plays an active role on criminal justice task forces for both ALEC and NCSL.
Allen argues that ALEC helps him and other legislators vet ideas that have been tried in other states. He says he's under no illusion that the private companies that serve with him on ALEC committees are doing anything other than promoting their own interests. But at the end of the day, Allen says, it's up to legislators to evaluate a variety of opinions and find out who is being truthful and which position would ultimately benefit the state. Within ALEC, the legislators who serve on task forces have to give their approval to any legislation proposed by corporate lobbyists before it is acknowledged as an ALEC model bill. Obviously, it's also up to legislators to decide whether to introduce or support a live bill back in their states.
ALEC does do a few things that reinforce its secretive image. It keeps its model legislation locked under password protection on its Web site, and gives its bills innocuous-sounding names that mask their actual significance. Rarely is any ALEC bill acknowledged as such; a legislator who proposes one offers it as though it were his own idea, the way Buehrer did in Ohio.
On the other hand, there is nothing furtive about meetings of the organization: Many of the complaints that critics register are drawn from their own experiences attending ALEC sessions, which are generally open to the public and media. "As a Democrat, I could attend and find out what is on the conservative agenda for state government," says North Carolina state Representative Paul Luebke. And while corporations pay big bucks for ALEC memberships and seats on the task forces, ALEC usually invites a range of speakers to its meetings. Kentucky state Representative Paul Marcotte, who chairs a task force, says he once invited a left-leaning public interest group to testify about a transportation issue. The assembled legislators ended up siding with that group's position.
In the end, it's hard to make the claim that ALEC's agenda is much of a secret or that its members are being co-opted to endorse legislation they wouldn't support anyway. In the words of Louisiana state Representative Donald Ray Kennard, ALEC's national chairman, "We are a very, very conservative organization...We're just espousing what we really believe in."
To the extent that liberal opponents make clear the connection between ALEC and its corporate sponsors, they may be able to gain increased public attention and place obstacles in the way of ALEC's model bills. But in order to win significant victories, they will need to convince legislators that those bills are dangerous on their merits, and not simply tar ALEC as "Corporate America's Trojan Horse," the way one report by environmental organizations recently did. In many states, the corporate connection is not particularly threatening to average voters.
"Nebraska is a very conservative state and ALEC is a very conservative organization, so I think there is a natural affinity there," says Pam Brown, who, like 46 out of Nebraska's 49 state senators, is an ALEC member. "I don't think the conspiracy theory about any legislation is particularly valid. I think it says very little about legislators to think that any of the national organizations are going to lead us around by the nose."
Steve Buehrer, sponsor of the Internet bill in the Ohio House, says ALEC has always been highly supportive when he has introduced legislation the group favors, sending staff members out to testify in a couple of instances when he has introduced bills he's drawn off of the ALEC priority list. "They're certainly very active in being helpful on the proponent side," he says. Buehrer maintains he hasn't given up on his effort to block the state from competing with private retailers on the Internet. He's already hatching plans to overcome the negative publicity his bill engendered the first time. "I expect ALEC to be a part of that," Buehrer says, "but we have to get some Ohio stakeholders involved as well."
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