Editor’s note: This is the final story in a five part series from the Topeka Capital-Journal on government transparency in Kansas.
LAWRENCE — More than 100 activists marched up and down Massachusetts Street lugging portraits of Kansas legislators aligned with the American Legislative Exchange Council’s bill-writing machine and effigies of the politically influential Koch brothers.
The spectacle unfolded on an unseasonably warm Saturday in early October and featured deep frustration among participants with billionaires David and Charles Koch and ALEC, which the Kochs helped create. ALEC has a loyal following among Kansas lawmakers, including the top Senate and House Republicans.
“These are the folks who are taking corporate money and working against the best interest of Kansans,” said Finn Bullers, an advocate for people with disabilities.
Al Frisby, an activist with Johnson County Move On, said model legislation emerging from ALEC gatherings of business and political leaders has been routinely peddled at the Capitol in Topeka. He objects because the link to ALEC is rarely acknowledged and, for the most part, he stands opposed to positions on issues embraced by the special-interest outfit.
“The evil of it is that it’s all far right,” Frisby said. “A lot of legislatures around the country have been influenced. It’s written and given to legislators and they just put their name on it.”
ALEC’s bill authors don’t operate in a vacuum. Dozens, if not hundreds of organizations — some with a huge professional following, others obscure — tactically strive to gain leverage by recommending fully formed, ideologically precise bills for use by lawmakers across the country.
The National Council of State Legislatures offers bills on taxation, disaster declarations, ethics, child support and many other subjects.
Officials at Council of State Governments present a cornucopia of bills for consumption by legislators, lobbyists and others. CSG’s website includes proposed legislation dating back to 2006.
Innocence Project offers legislative recommendations related to wrongful convictions, while the Center for Educational Reform points the way on charter schools. Goldwater Institute specializes in shaping “right to try” bills, which have given gravely ill people the option of taking experimental medication. Born Free USA outlines a policy approach regulating pet sales.
American Civil Liberties Union delves into body camera law. Institute for Justice focuses on legislative action on asset forfeiture. And, Specialty Vehicle Institute of America is willing to hold the hand of legislators as they work on bills tied to all-terrain vehicles.
Proliferation of bill writing by special interest groups appears to be on the rise, perhaps because it gets results.
“Model legislation is nothing new,” said Burdette Loomis, who has taught political science at the University of Kansas for more than 30 years, “but I don’t think we’ve ever seen more model legislation passed than in the last four or five years.”
In January, National Right to Life brought the point of its policy spear to the Capitol in Topeka. The bill, meticulously prepared, was written by leaders of the right-to-life organization for initial introduction in the Kansas Legislature.
The first-of-its-kind bill, the Unborn Child Protection from Dismemberment Abortion Act, was based on language contained in a U.S. Supreme Court decision on partial-birth abortion. The bill outlawing the procedure, which was used in 8 percent of abortions performed annually in Kansas, cruised through the House and Senate and was signed by Gov. Sam Brownback. An identical measure was adopted by Oklahoma lawmakers.
“Model language and very tightly drawn,” said Kathy Ostrowski, a lobbyist with Kansans for Life. “This was meant to be a spearhead bill that all states could get behind.”
She said tinkering by state legislators in Kansas might unintentionally inject elements into the law that could be exploited in a constitutional challenge. Supporters of the bill heard the message and resisted the temptation to offer amendments.
Mike Maharrey, who works with the Tenth Amendment Center, urged people shaping public policy across the nation to draw upon model legislation on an array of subjects tied to preservation of states’ rights declared under the U.S. Constitution. The Los Angeles center’s website includes recommended text for bills on the Second Amendment, militarization of police, surveillance by drones, business currency and hemp. However, modification of bill language is encouraged.
“It’s a starting point,” he said. “It’s important as legislators to not take that template and submit it verbatim.”
Maharrey said state lawmakers, especially those serving in citizen legislatures such as in Kansas, benefit from studying measures introduced or adopted in other states. Legislators can more easily avoid pitfalls of poorly drafted bills, he said.
Kansas Sen. Jeff King, an Independence Republican, said he had drawn upon expertise at organizations proposing model legislation.
He found value in National Council of State Legislatures’ insights into pension reform law. The Council of State Governments shared important information on juvenile justice reform. ALEC, he said, aided legislators in limiting “patent trolls,” which are law firms that attempt to enforce patent rights against alleged infringers beyond the patent’s actual value.
“The key is having a balance from all perspectives,” King said. “I think our state benefits from that.”
The next big meeting of ALEC is scheduled for Dec. 2-4 in Scottsdale, Ariz. A collection of Kansas legislators, political staff members, lobbyists and business executives will convene for the “States and Nation Policy Summit.”
In anticipation of the event, Cindy O’Neal, the wife of Kansas Chamber President Mike O’Neal, fired an email to dozens of the state’s lobbyists to invite each to help sponsor a table at the “Kansas Night Dinner” on Dec. 3. It is unlikely the mailing list missed any lobbyist of consequence delving into public policy issues at the Kansas Capitol.
“We are trying to get a feel for who from the private sector is planning to attend,” said Cindy O’Neal, who is with Hein Governmental Consulting in Topeka. “We are expecting that Kansas will have a delegation of around 20 House and Senate members.”
Dave Trabert, president of the state-level think tank Kansas Policy Institute, responded to express interest in buying dinner for Kansans attending the ALEC conference. The guest list includes House Speaker Ray Merrick, a Stilwell Republican.
“We’ve sponsored (dinners) in the past,” said James Franko, a KPI spokesman. “It’s an opportunity for us to sit down with legislators and talk about the policy issues important to us.”
ALEC operates as two branches, legislators and shareholders, which mimics the checks-and-balances approach to governing. Individuals engaged in ALEC summits prefile policy proposals, said Bill Meierling, a spokesman for ALEC.
During task force meetings, these recommendations can be molded into draft legislation. Separate votes are taken by the shareholder and legislative groups, with consensus required to forward text to a board of legislators. If adopted by the board, it becomes ALEC-sanctioned model legislation for use in capitols across the country.
“The board must make two determinations,” Meierling said. “Does this comport with our limited government and free market focus? And, is this something ALEC should be doing?”
He said ALEC doesn’t track which model bills were made law in Kansas.
A computer scan
With the assistance of plagiarism software, The Topeka Capital-Journal examined hundreds of bills introduced in the Kansas Legislature during the past two years. Phrases or entire paragraphs in Kansas bills matched ALEC’s model legislation.
For example, House Bill 2035, introduced this year to amend state tax credits for low-income student scholarships, contained more than two dozen phrases also found in ALEC’s recommended Great Schools Tax Credit Program Act.
A school finance bill introduced in the 2014 session featured 168 words mirroring ALEC’s language in the Next Generation Charter Schools Act. House Bill 2773 included a 46-word paragraph praising charter schools lifted word-for-word from ALEC’s model bill.
“Changes to the makeup of the Legislature have limited the expertise within the body and paved the way for special interest groups to play a larger role in policymaking,” said former Kansas Gov. John Carlin.
Legislation put forward in Kansas during 2014 to crack down on so-called sanctuary cities for undocumented immigrants had several dozen paragraphs and phrases matching ALEC’s model. Eleven percent of phrases in that Kansas bill were in ALEC’s version.
In the 2013 session of the Legislature, a bill granting property owners authority to use lethal force to repel trespassers had only 422 words. Ninety-one of those words appeared in the Trespasser Responsibility Act offered by ALEC.
In other cases, links are tenuous between ALEC and Kansas legislation. ALEC is largely credited with, or blamed for, an innovative school district program approved in 2013 to exempt certain districts from state regulations. While the Kansas bill had similar goals as ALEC’s Innovation Schools and School Districts Act, the bills didn’t share similar phrasing.
“There is no one-size-fits-all policy,” said Meierling, the ALEC representative. “That’s part of our philosophy. Anything legislators do should be workable for a given state.”
Diverse opinion exists about the Kansas Legislature’s affinity for recommended legislation linked to ALEC and other special-interest groups.
“They go up there and they get pre-written pieces of legislation and ram it through our Legislature,” said Mark Desetti, legislative director for the Kansas National Education Association.
House Minority Leader Tom Burroughs, D-Kansas City, even called ALEC an “ungodly coalition” during the rally in Lawrence.
Senate President Susan Wagle, R-Wichita, has been on ALEC’s national board along with Merrick. She downplayed ALEC’s influence in Kansas. She said the broad philosophical sweep of legislators in Kansas prevented a single organization from strong-arming the House and Senate.
“We don’t rubber-stamp policy with any group,” Wagle said.
On the contrary, Rep. Dennis Highberger, D-Lawrence, said influence of ALEC, as well as the Koch brothers, transformed the Kansas Legislature into a tool of those powerful corporate interests. He said the Legislature was a “government of the Koch brothers, by the Koch brothers and for the Koch brothers.”
Rep. John Rubin, R-Shawnee, is an ALEC member who will be at the Scottsdale summit this winter. He said ALEC operated much like the Legislature and performed an important public policy function.
“Do we listen to ALEC and look at model legislation that they recommend? Certainly, we do,” Rubin said. “Do we adopt it? Sometimes yes, sometimes no. Do we adopt it with changes? Often.”
Since 2011, the Center for Media and Democracy has operated ALEC Exposed, an outfit devoted to persuading corporations to abandon sponsorship of ALEC. It isn’t clear undermining ALEC would transform the legislative process in Kansas or anywhere else because there are so many organizations eager to pick up that policy torch.
“Changing people just changes the source of the model bills, it doesn’t change the structure,” said Chapman Rackaway, a political science professor at Fort Hays State University.
He said those who want to mitigate influence of ALEC and other well-positioned organizations ought to consider alternatives: authorization of a full-time, year-round Legislature populated by political professionals or development of a large legislative bureaucracy capable of filling the policy-formation void left by absence of external influences.