Yesterday, a diary made its way on to the recommended list calling to ALEC to be charged with racketeering. I winced when I started reading through it. We've got a real problem, folks.
The American Legislative Exchange Council (ALEC) is nefarious. Their "Castle Doctrine" model legislation is behind the "Stand Your Ground" laws which have spread like wildfire throughout the nation. Arguably, their "Freedom of Choice in Healthcare" model legislation, which called for states to nullify the ACA ("Obamacare") provided the intellectual basis for this fall's government shutdown. Finally, a variety of model bills pushed by the group have been employed in the War on Workers taking place in the states.
This list is not exhaustive. ALEC is bad news. But...... model legislation, in and of itself, is perfectly legal, And, ALEC has a right to exist. What they do not have the right to do is evade law and ethics guidelines which: 1) Place limits on "lobbying" by 501c3 organizations, 2) Require full disclosure of personal gifts to state officials, and 3)Require that legislative committee meetings be open to the public. Pretending that model legislation, in and of itself, constitutes corruption prosecutable under state or federal RICO acts limits our ability to go after ALEC for real violations.
Looking Back
There is a reason that much of the recent focus of ALEC activists has been on model legislation. ALEC has been around for over 40 years, but they've always had a low profile. The AFL-CIO has been on the case since at least the early 1980s. Various other groups have produced reports on ALEC over the years. However, after the final publication of their source book in 1995, ALEC's model legislation was hidden behind a paywall on their site, invisible to the public. States passed measures into law that had began as model bills, and the public was none the wiser. Under the radar, ALEC grow enormously influential. This made them visible, even if much of their influence occurred under a veil of secrecy.
All this began to fall apart in 2011. They did it to themselves by publicly going after William Cronon when he suggested they had a hand in legislation then pending before the Wisconsin legislature. If the idea was to stay in the shadows, ALEC done fucked it up. They were suddenly in the headlines. Things were about to get a lot worse. The protest that led a whistleblower to leak all ALEC's model legislation got started never had the goal of "abolishing" ALEC. What we wanted was transparency.
At the time, unions and most activist groups in Ohio were fully engaged in the fight against SB5, anti-worker legislation before the state legislature that has started as an ALEC model bill. They didn't have the time or resources to plan a protest of ALEC's spring meeting in Cincinnati that year. So we did. We were a bunch of college students and community folks from the Cincinnati area. (Other individuals have since claimed to have been involved in the planning of the protest, but the truth is that they were invited in by the organizers. And they were not involved in getting the leaked model legislation to the public.)
And our "asks"? Contained in an open letter we had written. "Abolishing" ALEC was no where on this list. It was all about transparency. We wanted ALEC to make full disclosure of its model legislation library, who their elected membership was, who their private sector members were, and how much these private sector members had donated. (The $200 or greater amount for disclosure was a nod to federal campaign finance laws.) Transparency, not eliminationist talk, was what we wanted. And, it's what we got.
From what the sole organizer who had contact with the person who leaked the model legislation told me at the time, it was this focus on transparency (and lack of hyperbole) that led them to contact us to do the leak. The problem wasn't that ALEC exists, it's that it operates in such a way that it makes a mockery of state law and legislative guidelines on lobbying. But, again, it isn't the model legislation alone that makes this the case.
Where We Stand Now
Diaries like the one which appeared on this site yesterday, and loose talk about "Abolishing" ALEC ultimately undermine the fight for transparency. It was by fighting for transparency that we succeeded in making ALEC's model legislation library public. Now, ALEC doesn't even try to fight transparency on this matter. They themselves have made their model legislation available to the public on their site. This is a huge victory. Hyperbole of the sort contained in talking about "abolishing" ALEC puts future victories on transparency in jeopardy.
To start, attacking model legislation as inherently corrupt, and alone being the basis for a RICO case, is an example par excellence of the type of hyperbole that puts real victories in danger. Many, many organization produce model legislation. At the state level it is especially prevalent because many state legislatures are part time and lack resources. Part time legislators often lack the knowledge to draft legislation themselves, and there are often a very limited number of staff attorneys available to do this work. By providing a framework from which to start, model legislation lessens the load on legislators. This alone, again, is no problem.
The problem emerges when no one has any idea that text, let alone the ideas, contained in legislation is coming from outside groups. Moreover, when these outside groups lack transparency, we have the very real problem of not knowing where our laws are coming from. Abolishing ALEC is not the answer to this problem. Requiring all groups to publicly disclose the text of their model legislation is. (ALEC has already done this, this is a victory.) Even better would be to compel the publication of comparisons between the language of legislation under consideration and model bills in legislative impact statements. This is not some special ask of ALEC. This is a good government measure that should apply to all groups engaged in policy advocacy.
A second bit of hyperbole I've been seeing pop up about ALEC, is this idea that campaign donations=bribery. This seriously misstates the law on the matter. A clear quid pro quo is required to make the case that money given to a legislator's campaign constitutes corruption. Moreover, this isn't what ALEC actually does. As a 501c3 organization, ALEC is permitted to engage in issue advocacy so long as it takes the form of "educating" legislators. This "education" bit exempts them from lobbying limitations that would otherwise accrue. Principally, this would take the form of limiting the amount of money a 501c3 may use for lobbying while retaining their tax status as a charity.
For the most part, ALEC does not donate to legislator's campaigns. It donates directly to legislators through their "scholarship" program. Again, ALEC scholarships (with limited exceptions) go directly to legislators, not to their campaigns. This is a problem. Direct gifts of this sort generally fall under lobbying legislation which not only compels disclosure, but also limits them to a nominal value. (Generally $25 or less.) ALEC has special exemptions which allow them to evade these guidelines. As I put it yesterday:
Say I'm ACME, Inc. If I have a piece of legislation I want to promote, I have to register as a lobbyist and disclose any items of value given directly to a legislator, as opposed to campaign donations. (That being a point of conflation that needs to be addressed. Campaign donations aren't illegal, however direct gifts to legislators often are.)
With ALEC, ACME can become a member, draft model legislation and give a $2000+ "scholarship" to a key legislator, all while avoiding the need to register as a lobbyist and/or disclose gifts to a legislator.
ALEC is very aware that too much exposure of their role in these "scholarships" could threaten their 501c3 status. Which is the reason that they've
moved them offbooks having state chairs solicit contributions to state "scholarship" accounts. These scholarships are shielded behind ALEC's 501c3 status, yet ALEC has moved them off books in order to avoid IRS scrutiny. Which leaves ALEC state chairs directly soliciting donations which will personally benefit them and colleagues (remember these are generally not recorded as campaign donations) without the protection afforded by ALEC's 501c3 status. I see people having cake and eating it too. Here, but only here, we are beginning to see the outlines of a predicate offense as envisioned by RICO.
These scholarships, and the privileged closed doors access they provide, is where our attention needs to be. Transparency is what we need to be asking for.
Looking Forward
We've succeeded in getting ALEC to make full disclosure of the text of their model legislation. Now we need to push for further transparency. Everything we ask of ALEC as a matter of law or policy must be something that we are willing to see groups that we favor abide by.
ALEC has a number of public and private sector members. Public sector members are most often state legislators, who receive "scholarships" provided by private sector members in order to attend events. At the very least, ALEC should agree to disclosure around these scholarships: Who's getting money, and how much? And, who's giving money, and how much?
Most states already have laws or ethics codes which require this. ALEC evades them through its exemptions. It is these exemptions, not ALEC itself that we need to attack in order to gain a little more transparency.
We've already got ALEC to make their model legislation public. Getting them to disclose members and money, as we would expect of any organization engaging in issue advocacy, seems to be a real possibility. Yet, hyperbole about RICO charges draws attention away from real solutions, like this.
Finally, ALEC meetings are most often close to the public. You have large numbers of legislators (potentially constituting a quorum of certain committees for certain attendees) meeting behind closed doors with the very interested parties who paid for them to be there. We need to extend the reach of state open meeting laws to those cases in which you have large numbers of legislators conversing with lobbyists behind closed doors. These conferences aren't social events, they are meeting in which interested parties compose a political agenda behind closed doors. They have every right to do that, however this needs to be open to the public.
When you really start getting into the details, this can have unexpected consequences. It could force open caucus meetings, which is a very hard sell. Details matter here. They also are a lot less fun than engaging in hyperbole. Nonetheless, we need to realize that hyperbole doesn't help our cause. It helps ALEC ignore reasonable requests for transparency. Which is why ALEC activists need to agree to combat hyperbole when we see it.