Just over six years ago, a wave of orange flooded the Texas State Capitol. Over 2,000 pro-choice demonstrators displayed signs that read “Shame” and “Abort Patriarchy, Reproduce Dignity” in response to the passage of Texas House Bill 2, which restricted abortion access in the state by imposing harsher standards on abortion clinics. During the three years that this law was in place, Texas saw the number of operational abortion clinics drop from 42 to 19, while the total abortion rate in the state dropped by 28 percent.
This decline in abortion accessibility was not incidental. Before HB2 found its way into the legislative chambers of Texas’ 150-member statehouse, it was conceived by a 12-person team known as Americans United for Life, a policy advocacy organization that works to ban abortion at any stage of pregnancy. AUL is one of many advocacy groups that draft model legislation for state governments, creating copy-and-paste bills that have appeared across the country as part of a coordinated effort to change national policy.
Collectively, groups like AUL have become the ghostwriters of the government, scripting legislation to further their own ends. Their copycat campaigns have proven very successful, enacting 2,100 bills into law over the past eight years, largely by exploiting the lack of public awareness around state politics and the lack of accountability for state lawmakers. This copy-and-paste phenomenon reflects a broader strategy, in which model legislation groups pursue state-by-state policy change in order to advance a particular national legislative agenda. The strategy’s success calls into question whether special interests have taken precedence over public ones in American policy-making.
A Culture of Copycats
Model legislation is much more pervasive than it might initially appear to many Americans. Earlier this year, a study by U.S. News, The Arizona Republic, and the Center for Public Integrity found that copies of legislation were introduced more than 10,000 times over the course of the last eight years. Of these 10,000 bills, 4,000 supported industry and 4,000 supported conservative interests, while 1,600 supported liberal interests. Together, model legislation groups have advanced some of the largest special interest campaigns in American politics, almost always through the veiled politics of the statehouse.
Since it tends to be less central in Americans’ minds than the federal government, the statehouse provides the ideal cover for special interest politics. A survey by John Hopkins University found that fewer than 20 percent of Americans could name their state legislators, and about one-third could not name their governor. Further still, only half of state residents could accurately name which policy issue received the most state funds. Coupled with this lack of public awareness about state government is a shocking lack of oversight, which further enables the proliferation of special interest politics. Although 41 states have government bodies to oversee state ethics laws, many of these bodies fail to adequately do their jobs: Only three states in the union received grades higher than a D+ from the State Integrity Investigation for their transparency and accountability.
Despite their lack of public attention and regulatory scrutiny, state governments can be pivotal in national policy change. “State governments control important social and economic policies — taxes, regulation, social welfare programs, and labor rights, for instance,” political scientist Alexander Hertel-Fernandez explained to the HPR. For these reasons, Hertel added, state politics have historically granted opportunities for partisan lawmakers — particularly conservative lawmakers — to advance policy goals that they could not achieve at the federal level.
As special interest groups seek to exploit the shrouded politics of the statehouse, much of the legislation ushered through state governments reflects the interests of big corporations and advocacy groups more than those of the public. For example, the American Legislative Exchange Council, whose models have been adapted into nearly 2,900 model bills in all 50 states and whose membership includes nearly one-third of all lawmakers, openly advocates for pro-corporate legislation counter to many Americans’ expressed interests. For instance, ALEC drafted the Living Wage Mandate Preemption Act in 2002, which repeals any local laws attempting to set a “living wage,” and has supplied the language for legislation against increasing the minimum wage in 12 states. Yet public surveys show that most Americans may not stand to benefit from such legislation: Eighty percent of Americans in 2015 did not believe they could support themselves or their families on the minimum wage, and 66 percent of Americans in 2013 favored increasing the minimum wage.
For these model legislation groups, changing state policy is an incremental approach to changing national policy. AUL, for instance, has introduced pro-life legislation across various states with the ultimate goal of overturning Roe v. Wade, according to AUL Senior Counsel Clarke Forsythe, who spoke with the HPR about the group’s strategy and vision. AUL has been largely successful in its efforts: In 2018, they provided the language for or helped enact 19 new pro-life laws and two pro-life resolutions. While Forsythe recognized that the path to federal change would be slow, he remained confident that AUL’s efforts at the state level would ultimately produce national pro-life policy change.
The Copycat Underground
In mid-August 2019, legislators, lobbyists, and corporations converged at the Marriott Hotel in Austin, Texas for the annual ALEC conference. While conferences like these showcase the legislative efforts of model legislation groups, much of the work continues year-round in task forces that aim to deliver potential legislation, ALEC spokesperson Dan Reynolds told the HPR. There are currently 11 different task forces working on topics such as criminal justice, homeland security, and health and human services. These task forces connect legislators with interest groups and corporate sponsors in order to develop legislation suitable to all parties present. Reynolds described this as an open process: “Anyone can come in and join, if you meet our criteria of [being] a legislative member or stakeholding partner … really what [participants] end up doing is helping each other out. You end up making true models for all the interested parties.” However, these task force meetings exclude ALEC non-members and the press, effectively cutting the broader public out of the conversation.
ALEC has also drawn criticism over its secrecy regarding membership and communications. The group does not post a list of paying members or corporate sponsors, and it drafts model policy in sessions where minutes are not made public. Reynolds described this lack of publicity as a matter of “respecting the privacy of our members,” who do not want these conversations shared. Furthermore, when the model policies developed by groups like ALEC are actually presented as bills, there is no attribution to the groups involved.
For Hertel-Fernandez, this lack of transparency in the legislative process is concerning: “[It is] worrisome that citizens don’t know where their legislators are getting their ideas and bill help.” This secrecy fuels a public incognizance that allows special interests to easily capture major issues and enact policies that Hertel-Fernandez claims are actually opposed by a majority of Americans.
Meanwhile, other model legislation groups are looking beyond written laws in attempting to set policy goals in motion. Forsythe, for example, identified three main strategies that AUL uses to promote its pro-life agenda: legal advocacy, legislation, and education. In the courts, AUL’s team of legal experts and medical consultants submit amicus briefs in favor of policies that restrict abortion. In the legislatures, AUL drafts model policies for states. Its annual publication Defending Life celebrates the group’s yearly legislative victories and gives policy recommendations for the coming year. And in terms of education, the group publishes op-eds on a range of issues, from Supreme Court decisions to instrumental leaders in the pro-life movement. Together, these tactics form a comprehensive strategy to dominate state politics.
In order for such multi-pronged efforts to succeed, model policy groups must secure adequate funding. “To build crossstate power, you need years of sustained infrastructure-building,” stated Hertel-Fernandez, “with generous donors willing to fund organizations even when those groups weren’t achieving policy successes.” ALEC has been highly successful in this area, acquiring $21 million in donations and dues from its private sector members between 2008 and 2011. Many of its fundraising and financial management practices, however, have come under public scrutiny, with critics filing a formal complaint to the charging that ALEC misuses charity tax-exemption policies by covering up activities that could be considered lobbying efforts.
Changing the Model
In recent years, advocacy organizations have brought greater attention to model legislation groups and the influence of special interests in state governments. One of these organizations is ALEC Exposed, a six-person team based in Madison, Wisconsin and a subset of The Center for Media and Democracy. The team works to publicize ALEC’s activities, which involves tracking the undisclosed ALEC membership list and uncovering the corporations behind specific model bills.
“Our previous executive director used to say that before the ALEC Exposed investigation was launched, if you typed ALEC into Google, you would just see tons of posts of the actor Alec Baldwin. Now you get American Legislative Exchange Council more often than that,” David Armiak, the research director at ALEC Exposed, told the HPR. For decades after its founding, knowledge of ALEC remained largely confined to the political circles of conservative politicians. This secrecy changed in 2011 following the publication of a groundbreaking report by ALEC Exposed and The Nation. After investigating an archive of over 800 leaked model policies, the two groups revealed ALEC’s outsized impact on the legislative process and the influence of its multiple corporate donors, including Koch Industries and AT&T, which invested millions of dollars to pass pro-business state legislation. To date, ALEC Exposed has convinced over 115 organizations to stop supporting ALEC, according to Armiak, and the group hopes to see this number increase.
While ALEC Exposed targets the model legislation pipeline through exposure and public accountability, other organizations are working to combat the proliferation of model legislation by engaging directly with state politics. The past decade has seen the rise of many liberal counterparts to conservative advocacy groups, including Flippable, Forward Majority, and Sister District. Currently, these counterparts are doubling down on their efforts to secure liberal majorities for 2020 statehouses.
Future Now is one group that has managed to construct its own stronghold of liberal model legislation, largely by developing a network of progressive state legislators. In only two years, Future Now has gained the support of over 600 legislators in working to counter the influence of conservative model legislation groups in the statehouse. The organization is primarily concerned with transparency, which it sees as imperative for ensuring that conservative copy-and-paste legislation, like that produced by ALEC, does not capture state politics.
In an interview with the HPR, Daniel Squadron, the cofounder and executive director of Future Now, argued that when the source and purpose of a bill are hidden from the public, as is typically the case with model legislation, special interests can easily gain control of the lawmaking process. Future Now aims to change this. For Squadron, “sharing best practices across states and building networks of state lawmakers who have common goals,” which advocacy groups across the political aisle seek to do, can encourage policy-making informed by public interest, even allowing for the positive use of model legislation — so long as it remains transparent. To this end, Future Now has published its set of aims, which it calls America’s Goals, and openly discloses its partners.
To some, however, Future Now may not seem so different from ALEC. In Armiak’s opinion, groups like Future Now only create more problematic special interests in state governments. “Just adding … groups that write and create model legislation is not what our democracy needs,” Armiak stated. “Our democracy needs politicians to sit down more with their constituents more and they should be writing legislation based on input from their constituents — not some corporation [or] special interest group.”
Meanwhile, Hertel-Fernandez supports diminishing the power of special interest politics by bolstering the independence of state legislatures. Strengthening staff support, increasing pay, and lengthening legislative sessions could grant lawmakers the time and resources they need to properly deliberate over policy decisions, as opposed to relying on template legislation. “Even with greater resources, of course, some legislators may well decide to rely on ALEC or other similar groups,” Hertel-Fernandez conceded, “but the difference is that at least they will have a choice.”
While Americans may find themselves focused on the upcoming 2020 presidential election, state legislatures remain a largely invisible hotbed for battles over national policy and political ideology. Copy-and-paste campaigns have allowed special interest groups to advance national legislative agendas by influencing statehouses across the country. And without greater public attention, it may prove difficult to achieve a policy-making process that is more representative of the people’s interests than of third parties’.
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