Some may say I’m obsessed with the American Legislative Exchange Council (ALEC).
In my opinion I think we all should be obsessed with ALEC.
While I am displaying an obsession with them – ALEC (in my opinion) has been displaying a paranoia, based on corporate megalomania that has spanned over 30+ years to protect the interests of their “private sector members”, by using our State legislators to enact ALEC corporate-focused “model legislation”.
Our elected officials introduce ALEC “model legislation” and the legislation does not come from the needs and wants of the constituents. The ALEC "Model Legislation" comes from the needs and wants of the ALEC “private sector members”.
Because of this ALEC legislation can be deemed as unneeded, inherently wrong, thwarting the democratic (small d) process and focusing our ALEC State legislators on corporate interests, rather than the interests of “we the people”.
At the top of each legislative Act published in Wisconsin it says:
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
WRONG – the people do not enact ALEC “Model Legislation"! But, Scott Walker, with the help of ALEC, gave Wisconsin ALEC tort reform his first day in office (probably his first hour in office) that benefits corporations and insurance companies at the expense of consumer protection - with the support and representation of the ALEC members of the Wisconsin senate and assembly.
Scott Walker appears to be the poster boy for the corporate interests at ALEC. Scott Walker appears to be the poster boy for ALEC because most everything he has enacted reeks of ALEC stench.
Walker used the information that was published by ALEC in their report "Disorder in the Courts" (2001, 2003, 2007) and the "education" he received from ALEC to develop his tort reform act. Due to his success, ALEC released to the public (on their webpage) the "The State Legislator’s Guide: Tort Reform Boot Camp" (2011) - because so many states have done this - it doesn't matter who knows anymore. (Putting stuff on their webpage is ALEC's way of bragging about their success.)
The first day Walker was in office, January 4, 2011 – January 2011 Special Session - before Walker enacted all the tax incentives and give-aways to corporations and businesses – the very first thing Walker enacted was tort reform in Wisconsin. “01-04-11. A. Introduced by committee on ASSEMBLY ORGANIZATION, by request of Governor Scott Walker…”
The first day he was in office, Scott Walker introduced almost every piece of ALEC tort reform "Model Legislation" - in one legislative act, his first act.
Case in point
Known as “ASSEMBLY BILL 1, January 2011 Special Session “then “Senate Bill 1” and now “2011 WISCONSIN ACT 2”
Why is this important? Because the first thing he did was implement what appears to be “model legislation” suggested by ALEC for over a decade.
While I would like to introduce you to all the horrendous actions included in this act – I must refrain myself to limited discussion.
In the 2001 ALEC Annual report, ALEC notes the following as some of their major issues for needed tort reform.
Major Issues
Class-Action Lawsuit Reform
Joint and Several Liability
Product Liability
Punitive Damages Reform
Now we have the ALEC recommended “2011 WISCONSIN ACT 2”
Under [WISCONSIN ACT]Act 2 evidence that a product, at the time of sale, complied in material respects with relevant standards, conditions, or specifications adopted or approved by a federal or state law or agency creates a rebuttable presumption that the product is not defective.
(Inside ALEC | March 2010)
ALEC created its Regulatory Compliance Congruity with Liability Act … this legislation creates a supposition of propriety when producers meet existing government standards and regulations. … the model bill attempts to refocus liability on those manufacturers and service providers that do not follow the law …
My question is: What if the state or federal regulation has not kept up with new technology and newly documented side effects of a product – are you – the consumer - screwed, but the manufacturer is “safe”?
(Under [WISCONSIN ACT]Act 2) If multiple defendants are alleged to be responsible for the defective condition of the product, and the injured party is not barred from recovery, the fact finder must determine the percentage of causal responsibility of each product defendant for the defective condition of the product.
Under [WISCONSIN ACT]Act 2, a seller or distributor of a product is not liable to a claimant for damages if the seller or distributor receives the product in a sealed container and has no reasonable opportunity to test or inspect the product.
ALEC advocates a third, more fair liability-apportionment standard, and it is easy to understand: a defendant must pay damages in proportion to its established liability. If considered 30 percent liable, the defendant must pay 30 percent of the verdicted damages. (Inside ALEC | March 2010)
My question is: What if 50% of the product is made in say – China? You have as much chance of getting that part of the settlement as you do making a silk purse from a pig’s ear. Works out nicely for those businesses that outsource everything – which is damn near every large corporation.
The [WISCONSIN] Act [2] places a cap on punitive damages. Under the Act, punitive damages received by a plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater.
Full and Fair Non-Economic Damages Act (ALEC)
The Full and Fair Non-Economic Damages Act prevents the use of evidence relevant to punitive damages in determining non-economic damages, maintaining the distinction between compensation for loss and punishment of the defendant.
My question is: Per Wiki “Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit.” Do you really think $200,000 is going to deter a company from doing whatever they did wrong?
In the 2002 ALEC Annual Report ALEC notes,”
litigation, aided and abetted by activists and plaintiffs’ attorneys, threatens to straitjacket entire industries”
and then they go on to say,
“ALEC is trying to lead the way out of this abuse of judicial power with model legislation”
Types of abuse that they specify include:
Discourage frivolous lawsuits
Require careful scrutiny of expert testimony
Now we have the ALEC recommended “2011 WISCONSIN ACT 2”
[WISCONSIN ACT 2] A party or a party’s attorney may be liable for costs and fees under this section for commencing, using, or continuing an action, special proceeding, counterclaim, defense, cross complaint, or appeal .l..:
Under this bill, [WISCONSIN ACT 2]in civil actions, a party or his or her attorney may be liable for costs and fees for beginning, using, or continuing an action if that is done solely for the purpose of harassing or maliciously injuring another and the party or attorney knew that there was no reasonable basis in law for the conduct or no good faith argument for an extension, modification, or reversal of the law.
In a 2008 press release ALEC notes:
the fact remains that business-killing frivolous litigation similar to this could easily happen again if changes aren't made to our legal system. In particular, the vague and often unfair D.C. Consumer Protection Act, and similar laws in other states, must be amended to not encourage meritless lawsuits like this case.” … The problem does not stop in D.C. Numerous other state-level Consumer Protection Acts only require similar minimal proof. The American Legislative Exchange Council (ALEC) has developed its Private Enforcement of Consumer Protection Statutes Act to safeguard against such troublesome abuse.
And again in the March 2010 edition of Inside ALEC they reiterate this conviction when they state
ALEC’s Private Enforcement of Consumer Protection Statutes structures the private right of action under such laws to reflect sound public policy. Reforming your state’s consumer protection act can go a long way toward minimizing frivolous litigation.
My question is: Who determines what is “frivolous”? If you have a judge on the bench who is an ALEC member - a person who has been “educated by ALEC” - who does not believe in climate change, who believes there is no harm from secondhand smoke, who believes that phthalates are safe or that lead paint chips do not create harm – is their ruling of frivolous one that we should accept?
The Act [WISCONSIN ACT 2] limits testimony of lay witnesses in the form of opinions or inferences to opinions and inferences that are not based on scientific, technical, or other specialized knowledge within the scope of an expert witness. The Act requires expert testimony to be based upon sufficient facts or data and the product of reliable principles and methods.
ALEC developed the Reliability in Expert Testimony Standards Act to help states align themselves with the fairer federal standard and to keep junk science from bringing about poor verdicts in state courts. The legislation requires courts to hold the pretrial hearings used on the federal level to ascertain the reliability of an expert, and it provides courts with a nonexclusive list of factors to consider in determining reliability.
My question is: Whose expert witness are the courts going to consider “junk science”? Will the experts flown in by ALEC with their “corporate based” facts from the Heritage or Freidman foundations or the Mackinaw Center be the expert testimonty or the "junk science"? Or will our courts allow real scientists, with real facts and real data to testify?
WISCONSIN ACT 2 contains many other tort reforms that are ALEC recommended. One tort reform that I can’t link to ALEC has to do with litigation for nursing homes. It is my opinion that anyone who has a loved one in a nursing home in Wisconsin carefully read WISCONSIN ACT 2, as there is some really nasty tort reform that benefits nursing homes in this act.
In an article written by Wisconsin State Representative Phil Montgomery, (Nov/Dec 2009 - Inside ALEC) Rep. Montgomery states
“Thankfully, the ALEC Civil Justice Task Force stepped forward to join with Wisconsin manufacturers, building contractors, health care professionals, insurers, and restaurateurs in advocating for common sense civil justice reform.” … “Give credit where credit is due. Not only was ALEC, and its staff, there to help enact tort reform in 1995, they were there to prevent those reforms from being rolled back. As a result, Wisconsin businesses, large and small, can cross the hidden taxes resulting from changes to the state’s joint and several liability statutes off the list of concerns as they struggle through in the midst of our current economic downturn.”
According to WI Rep Phil Montgomery it appears we should “Give credit where credit is due”.
Thank you American Legislative Exchange Council (ALEC) for the model legislation.
Now Wisconsin has the ALEC recommended “2011 WISCONSIN ACT 2”
Recently ALEC legislative members brought ALEC tort reform to Minnesota.
Sen. [Ron] Latz said the bill is part of a nation-wide effort to weaken consumer rights, led by big insurance and big business special interests through the American Legislative Exchange Council (ALEC). Minnesota’s legislators are introducing cookie-cutter bills written in D.C. and claiming them as their own.
“This bill makes it perfectly clear that Minnesota Republicans choose to protect big business and insurance companies rather than defend the rights of Minnesotans,” said Sen. Latz. “Republicans make the wrong choice. Across the country, we see Republican legislatures teaming up with big business and insurance companies to trample the rights of consumers. Even in Minnesota, this bill is just one of many Republican bills that will hurt consumers while protecting large corporate interests.”
Please join Senator Latz and others who are trying to stop this influx of corporate sponsored tort reform model legislation from ALEC. Watch what your state legislators introduce into your state house and refuse to accept these pieces of ALEC legislation that “weaken consumer rights” and “protect big business and insurance companies”.
If you don’t know what ALEC is you should –
please read this, or this, or this.
Protest ALEC - August 5, 2011 - New Orleans