Gaming American Democracy: A Perfect Storm in Which Republicans Disenfranchise Voters While Giving Corporations Unchecked Powers

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by John Dean

The Center for Media and Democracy is re-posting this article from John Dean at Justia's Verdict website as part of our efforts to expose the American Legislative Exchange Council. The original can be found here.

One of the most stunning results of the Republicans’ victory sweep in the midterm 2010 elections (which made Ohio Republican Congressman John Boehner Speaker of the House of Representatives, while the Democrats retained control of the Senate) was the GOP’s taking control of 19 state legislatures. Not since 1928 had Republicans held such power over state government, and since then, they have not been reluctant about using their power.

GOP state legislators, and governors, have fervently pushed for the adoption of their conservative social and political agenda, which encompasses everything from severely limiting women’s rights, to privatizing government functions while breaking public service unions, to removing health-and-safety and other regulations of businesses, to repealing (or refusing to raise) fundamental taxes that are needed to operate state government. In many states, Republicans have jammed through their radical laws with only the thinnest of majorities.

As I mentioned in my opening column of this series, it was when Wisconsin’s teachers, firefighters, and policemen protested the dictatorial-style ploys of Governor Scott Walker that broader public attention became focused on these efforts. It was also quickly noticed that other GOP-controlled states were making similar moves, with many conservative legislators and governors adopting nearly identical legislation. This, of course, was not a coincidence.

The orchestrated moves in GOP-controlled states were the work of a number of conservative organizations that had long been devoted to imposing a conservative pro-business agenda on the nation through state laws. Leading the effort was the American Legislative Exchange Council. The 2010 elections, unfortunately, had proved to be a perfect storm for this organization and its conservative partners.

Exposing the Shadowy and Secretive ALEC

The American Legislative Exchange Council, known as ALEC -- like countless other such 501(c)(3) and (4) non-profit conservative charitable organizations -- has an intentionally dull-sounding name, for conservatives prefer to operate behind closed doors, secretly, without attracting attention. I first noticed ALEC during the Bush II years when I read a Mother Jones article about what was described as “one of the nation’s most powerful -- and least known -- corporate lobbies.” Even then, ALEC had already been “ghost writing” state laws for nearly a decade. Yet I’d not heard of ALEC before. It had no website, and I could find little reported information about its work.

It was Wisconsin’s pugnacious Governor Walker, however, who turned a spotlight on ALEC, which today has a website, where it proudly proclaims its purported non-partisan allegiance to “Limited Government, Free Markets, Federalism” -- code words well-known to every conservative for a pro-corporation and business-friendly economic agenda, which is why big corporations have provided robust funding for ALEC. (While ALEC has a few Democratic state legislators as members, they are the “blue dog” breed, and might as well be Republicans.)

ALEC’s work was nicely described by Mother Jones: “With more than 2,400 [conservative, my addition] state lawmakers as members -- roughly one third of the nation’s total -- ALEC is a year-round clearinghouse for business-friendly legislation. Its nine task forces, each composed of legislators and representatives [read: corporate lobbyists and lawyers] from private industry, sit down together to draft model bills on issues ranging from agriculture to school vouchers, which are then introduced in state legislatures across the country. ALEC gives business a direct hand in writing bills that are considered in state assemblies nationwide, ... supplying precooked McBills to state lawmakers. Since most legislators are in session only part of the year and often have no staff to do independent research, they’re quick to swallow what ALEC serves up.”

In July 2011, whistleblowers with inside access to ALEC provided the Center for Media and Democracy, a non-profit investigative reporting organization, with copies of some 800 ALEC legislative proposals that had been introduced in state legislatures throughout the nation, and related material. CMD created a website devoted to making this information public and explaining the work of this secretive organization, ALEC Exposed. Joining the CMD effort to expose this organization, The Nation devoted much of its July 12, 2011, issue to ALEC.

ALEC’s Massive Funding Influences

ALEC’s corporate funding is extensive, and when viewed with the efforts of its sponsors, massive. Based on CMD’s study of ALEC’s publicly available IRS tax returns, 98 percent of its funding comes from corporations and over the past three years, it has raised over $20 million -- a sum with which you can develop and promote a lot of state legislation. According to Common Cause, ALEC’s corporate sponsors have further invested, during the last decade, more than $370 million in state elections, not including countless millions for and against state ballot measures, receiving a remarkable return on their investment in 2010. (For those interested in more detail, the CMD’s material at ALEC Exposed, and Common Cause’s report “Legislating Under the Influence,” provide a solid grounding in ALEC’s operations. (They also provide good reasons to contribute to those non-profit undertakings that do operate in the general public’s interest, by trying to keep an eye on ALEC and like-thinking operations.)

ALEC’s business-friendly laws are never identified by their true corporate sponsorship, and some have only been identifiable since the recent leaks to CMD. When NPR’s Terry Gross interviewed ALEC’s current national chairman (this post rotates annually) Noble Ellington, a Louisiana state representative, he was not troubled whatsoever by the fact that ALEC’s laws were written by unidentified corporations, since they went through the legislative process which was transparent and sought public comment. (Of course, until recently, no one knew that corporations -- rather than the representatives and their staffs -- were doing the work for the legislatures, which is not an insignificant detail.)

On balance, ALEC has been amazingly successful in accomplishing its never-ending goals on behalf of conservatives, as well as its corporate agenda, at the state level. It has written thousands of laws that benefit corporate America, and conservative causes -- often at the expense of the greater public good, and more often, unknown to most Americans. Needless to say, this process is certainly not an instance of government’s serving the general public’s interest. Rather, it is an instance of corporate money legally corrupting democracy, with its outsized influence, to obtain its special interests -- the public be damned.

For example, ALEC has been very busy working to change the nature of representative democracy by diminishing the power of the American people at the ballot box. ALEC seeks to use is funding power to disenfranchise people who are likely to vote against the conservative social agenda or against corporate interests.

Gaming the Ability to Vote

It should be understood that the conservative call for freedom and liberty is really a call for their brand of freedom and liberty, and for a world where evangelical Christianity dominates the social and political order. Conservatives (economic and religious, who have joined forces to empower each other’s interests) want to make radical changes to American democracy, and they are succeeding because little attention is being paid to their tactics. Before Scott Walker drew attention to ALEC, it operated openly, but in the shadows.

Democracy is fundamentally and traditionally dependent on men and women who are of good will, and who believe in majority rule. When a majority decides, that decision prevails—or ought to prevail—until a new majority sees fit to change the rules. Most Americans play the game fairly, and accept majority rule as a given, and the American tradition. Contemporary conservatives, however, have little interest in such Queensberry-type standards. They have problems winning at the ballot box, for most Americans reject their agenda -- an agenda that would remove the barriers between church and state, and leave it to the marketplace to regulate multibillion-dollar corporations, created by the state. Conservatives, increasingly, view those who do not exploit ambiguity and the unwritten traditions of our system to their advantage as fools -- people who can be taken advantage of, and whose ignorance and naïveté are, in fact, being exploited.

The Nation writer John Nichols prepared a brief video after he completed his analysis of ALEC’s secret programs, where he does a wonderful job of explaining how ALEC operates and why they do so, as well as their current efforts to (1) suppress voting; (2) eliminate direct democracy, by which the American people have traditionally reached their collective political and social goals; and (3) change existing laws that once restricted the presence of unlimited corporate money in our political system, fostering rulings like Citizens United, which has changed the playing field for the GOP, giving it even deeper pockets from which to control politics and government. (In less than three minutes, John provides a capsule overview.)

Others have started writing about the GOP’s efforts to disenfranchise Americans who are not likely to support them. For example, writing in Rolling Stone magazine, Ari Berman addressed “The GOP War on Voting.” He found ALEC to be the force behind legislation in 38 states “designed to impede voters at every step of the electoral process.” And, so far, a dozen GOP-controlled states have approved such new obstacles to voting.

Former President Bill Clinton has spoken out about this concerted GOP undertaking. “Why is all of this going on?” the former President asked rhetorically. “This is not rocket science. They are trying to make the 2012 electorate look more like the 2010 [Tea Party] electorate than the 2008 [Obama] electorate.” He added, “There has never been in my lifetime, since we got rid of the poll tax and all the Jim Crow burdens on voting, the determined effort to limit the franchise that we see today.”

Ari Berman’s Rolling Stone analysis found the GOP efforts and their new legal successes in disenfranchising Democratic voters to be focused on four areas: (1) Creating barriers to registrations that effectively put groups like the League of Women Voters and Rock the Vote out of business, by imposing impossible time restrictions and onerous bureaucratic requirements; (2) Cutting back early voting availability, which had increased the turnouts of demographics that favored Democrats, such as working people and minorities; (3) Disenfranchising ex-felons, to whom states like Florida and Iowa had restored the right to vote, and who are disproportionately African Americans and Hispanics, so they tend to vote Democratic; and (4) Requiring photo identification to vote, which affects college students, the elderly, African Americans, and Hispanics. This push for voter IDs has been accompanied by measures making it more difficult to obtain such identification.

In a nation that has long been lackadaisical about exercising the voting franchise, these restrictive hurdles aimed at actual and potential Democratic voters will affect untold millions -- possibly, a sufficient number to deny President Obama reelection in 2012, while at the same time further entrenching Republicans in local, state, and national elective offices. (The National Conference of State Legislatures, which is a truly non-partisan organization, provides up-to-date information about these and others legislative activities in state assemblies. But the NCSL merely tells what is happening, not why, nor what its impact has been, or will likely be.)

Fortunately, these GOP-concocted revisions to American voting rights are being challenged by the ACLU and a number of Democratic groups. In particular, Congressional Democrats are calling on the Department of Justice to employ its powers under the Voting Rights Act where there is clear discrimination. Much of this action to deny Americans the franchise has been undertaken because of gaps in the law, or even support from the law, as with the U.S Supreme Court’s 2008 ruling in Crawford v. Marion County Election Board, which authorized voter identification in Indiana. But where the Court gave the states an inch, ALEC is now pushing for a mile.

Resolving the legality of the barrage of new election laws will be costly, and will take decades. Meanwhile, Republicans will have gained and taken their unfair advantage, which will likely only encourage them to further game the system. It’s the way they now play the game, and while it may be nasty and even un-American, they could care less, as long as they are winning.

Republicans simply rely on the reality that an overwhelming majority of Americans do not know what is going on; that the well-funded Republican public-relations barrage targeting Americans will keep the American people focused on less than vital issues; and that the corporate underwriters who fund this devious behavior believe they are doing what corporation are suppose to do, which is to make profits, so they simply laugh all the way to their off-shore banks.

No one knows how this will all play out, but as those who are gathering to occupy Wall Street and other public squares understand, this is not the way it should be. Conservatives and their corporate backers should understand that democracy is fragile, and if they persist, it will break.