Cookie-cutter legislation 

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

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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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  • Photo by Cathrine L. Walters
  • 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.

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