Preemption of Democracy by ALEC, its Corporate Funders, and Republican & Democratic Corporatists

Message to media pundits: "It's the Corporatocracy, stupid!" Government has been coopted in service of the corporate bottom line, bought by the likes of the Koch brothers and the American Legislative Exchange Council which writes model laws to supplant democracy and overcome the common good.
02/17/2016 01:48 pm ET Updated Feb 17, 2017

Message to media pundits: "It's the Corporatocracy, stupid!" Government has been coopted in service of the corporate bottom line, bought by the likes of the Koch brothers and the American Legislative Exchange Council which writes model laws to supplant democracy and overcome the common good. Sen. Bernie Sanders is the one candidate who speaks the truth about subversion of democracy, the cooption of government to serve corporate elites -- government by and for the corporations instead of the people.

The most recent "trade deal," the Trans-Pacific Partnership -- named "NAFTA on Steroids" -- has little to do with trade. Every trade agreement in recent history, including NAFTA and Korea, has resulted in increased U.S. trade deficits -- more imports and fewer exported goods, and increased offshoring of jobs.

TPP is primarily a means to global governance, placing multinational corporations in charge. Corporations will be permitted to establish a separate global court system intended to bypass the sovereignty of nations, to circumvent U.S. democracy, its courts, legislature and Constitution. It will enable corporate enterprises to sue cities, states or nations to overturn laws and regulations in order to recover expected future profits. It is the ultimate corporate power grab.

ALEC's Triple Assault On Democracy
The American Legislative Exchange Council (ALEC) acts as a catalyst, bringing together legislators and their corporate funders in common cause to write legislation in service of their corporate bottom lines. Achieving corporate goals begins with suppressing voter participation, creating barriers to direct democracy, and pouring massive amounts of money into campaigns, initiatives and litigation. ALEC membership reportedly costs legislators $50 to $100 annually, while corporate members pay $10,000 to $25,000. ALEC is also subsidized by direct grants from corporations - Exxon Mobil reportedly gave $1.4 million from 1998-2009. Foundations like that of the Koch family also bestow generous grants.

ALEC works hand-in-glove with industry to write corporate-friendly model legislation. Some examples:

Prison Industrial Complex Writes Immigration Law
Model legislation written by ALEC with member Corrections Corporation of America, the largest private prison corporation in the country, augments CCA profits made from imprisoning immigrants. "Breathing while brown" legislation passed in Arizona and promoted in other states, permits police officers to stop anyone they think may be undocumented, and to imprison anyone whose papers are not in order.

ALEC & Utilities Promote Climate Change Denial & Suppression of Solar Energy
Actively promoting climate change denial, ALEC has drafted model legislation in Florida to depress incentives for rooftop solar by ending net metering (the ability to sell excess electricity back to utility companies). At the request of the Florida's Utility Companies, the state Public Service Commission voted to end Florida's solar rebate program at the end of 2015, and to slash the previously adopted energy efficiency goal by 90 percent. In December 2014, the Public Service Commission reportedly gave Florida Power and Light permission to collect $191 million from customers, to use to enter the fracking industry with a natural gas venture in Oklahoma.

Preemption of Local Gun Laws
Beginning in the 1990s ALEC worked with the gun industry to enact preemption of gun laws in almost every state. Additionally, "super-preemption" legislation pushed by the industry creates "private right of action" allowing individuals or groups the right to sue local governments or local officials if they believe they are enforcing local firearms laws.

In 2003, a mere four years after the Columbine High School carnage, a state bill to preempt local gun safety laws (SB-03-25) was signed into law by Colorado Governor Bill Owens, rendering numerous local gun ordinances across the state unenforceable. Denver is the only Colorado city to challenge the preemption law in court. Subsequently its existing bans on assault weapons and open carry of firearms were upheld on a tie vote by the Colorado Supreme Court in 2006.

Crushing Participatory Democracy by Supplanting Voter, Worker & Local Power
As conservative courts have pursued judicial activism in recent decades to reverse the power equation between corporations and the people who created them, unlimited cash has come to dominate and corrupt politics, exacerbated by the 2010 Supreme Court decision Citizens United vs. Federal Election Commission and decades of policies that effectively transfer wealth upward.

All that is left for friends of oligarchs is to crush participatory democracy. A primary goal of ALEC and its local government subsidiary, the American City County Exchange (ACCE) has been to limit voting and subvert democracy, while ensuring unlimited corporate campaign spending in service of their conservative agenda. They have purposefully erected barriers to voting in the form of photo ID laws and proof of citizenship requirements, intended to disenfranchise voters least likely to support right-wing candidates.

In addition to controlling who gets to vote, ALEC and ACCE seek to control what people get to vote on, as they work to preempt local laws and to place the ballot initiative process out of reach. Karen Moreau of the American Petroleum Institute ironically lectured local leaders at one ACCE gathering about the dangers of local control, comparing the rise of fascism in Hitler's Germany to opposition to fracking in local communities.

The better to exploit workers, ALEC-allied corporations seek to ban collective bargaining for public sector unions. Further crippling unions, so-called "paycheck protection" laws prevent the use of union dues for political purposes without annual reauthorization from each member. ALEC-promoted "right-to-work" campaigns undermine private sector unions. Still more worker assaults preempt minimum wage increases, and require a higher burden of proof in workers' compensation cases, while removing no-fault provisions, effectively compelling a worker who loses a claim to pay the employer's legal fees.

ALEC and ACCE target local government regulations that "hurt economic growth," a euphemism for overcoming unobstructed corporate profits. So, too, do efforts to privatize public services (ostensibly "to promote limited government") transfer the Public Commons to corporations, boosting the corporate bottom line at the expense of the people. Some prime targets of privatization include Social Security, Medicare, and Medicaid, public schools, state pensions, etc.

Preemption of local governance violates core conservative and democratic principles, effectively stripping power from locally elected officials, and denying voters democratic process. Hailed by ALEC, Michigan's Emergency Management Laws permit a single governor-appointed Emergency Manager to replace all locally elected officials in a municipality, granting him power to destroy collective bargaining, to lower wages for public workers, to break public employee contracts, and to sell off public assets to the private sector. In such a capacity, a Flint, Michigan Emergency Manager triggered one of the greatest toxic water emergencies in the U.S. by switching Flint's water supply from Detroit's system to the contaminated Flint River "to save money."

One-Two Punch: Preemption Laws & Litigation

Because it is easier for industry to work their money and influence in 50 state legislatures than in thousands of municipalities, ALEC creates model state preemption laws to directly or retroactively block local laws and ordinances. Preemption laws strip the right of local governance surrounding every conceivable issue, including minimum wage, paid sick leave and benefits, pensions, rent control, community broadband, cyanide heap leach mining, high-volume slick-water hydraulic fracturing ("fracking"), pesticide and GMO restrictions, plastic bag bans, gun safety laws, factory farming, or anything else industry desires to control.

ALEC and ACCE were spurred to swift action against municipal governments after successful efforts in cities including Seattle and Los Angeles to increase wages in 2014, as well as the passage of an Earned Sick Days ballot measure in Trenton, New Jersey that was challenged in court by six trade associations. ALEC allies pursue a dual-track strategy of direct or retroactive preemption legislation plus litigation, a one-two punch intended to intimidate and frighten other localities from enacting progressive policies.

So, too, did the oil and gas industry swiftly file a lawsuit in reaction to a 2014 ballot initiative banning fracking in the town of Denton, Texas. State legislators responded with a deluge of preemption bills to prohibit local authority over public health and safety, and to subject local ballot initiatives to pre-approval by the state attorney general. A Republican Texas legislator and ALEC national chairman has called for another tactic favored by industry, a "fiscal impact" assessment of the cost in tax revenue of any local regulation of oil and gas - a largely subjective exercise likely to be narrowly defined by and for industry.

Oil & Gas Industry Targeting of the Citizens Ballot Initiative Process

The ultimate takedown of direct democracy has been the targeting of citizen ballot initiatives, placing the process out of reach for all but the wealthy elite. In response to proposals for worker protection or industry regulation, ALEC advocates making it harder to qualify referendum language, and requiring super-majorities to pass fiscal ballot issues. A 2006 ALEC Resolution asserts, "The legislative process should be the principal policy-making vehicle for developing state law" -- the legislature being the point at which corporate lobbyists exert maximum influence, and citizens the least.

Several municipal fracking bans and moratoriums in Colorado since 2012 have also been met with industry lawsuits. Fracking-restrictive ballot initiatives in 2014 prompted stepped-up challenges to the citizens ballot initiative process by oil and gas front groups.

Called a preemptive strike against anticipated 2016 ballot measures to moderate or ban oil and gas drilling in local communities, HB15-1057 was promoted by the group Colorado Concern, the primary force behind two 2014 Colorado pro-oil industry ballot measures - Amendment 121 and Amendment 137. The latter served as the model for HB15-1057. It required any group seeking to ban commercial activities such as oil and gas drilling, to post a "fiscal impact" statement on every initiative petition - obviously intended to be a narrow, industry-sanctioned statement. The prescribed statement would no doubt disregard costs to air, water, human health, or economic, environmental and social costs of industrial operations near schools and neighborhoods. Bill language states that any "dissenting" opinions on the fiscal impact note are to be posted on a "Legislative Council website" - largely out of public view.

The two 2014 industry ballot measures were eventually withdrawn - traded in the compromise between Gov. Hickenlooper and Rep. Jared Polis that killed Polis' ballot measures, Amendments 88 and 89, respectively establishing 2,000 foot setbacks for oil and gas wells, and the environmental right of cities and counties to clean air, pure water and natural scenic values.

Heavily promoted by Gov. John Hickenlooper and sponsored by Democratic Rep. Lois Court and Republican House Minority Leader Brian DelGrosso, HB15-1057 was acknowledged to be redundant, as a Blue Book evaluation with a fiscal impact analysis of each ballot initiative is already sent to every voter. Rep. Court said fiscal impact should link limitations on fracking with reduced tax revenues and consequent reduced funding for public services. The president of the Colorado Petroleum Association Stan Dempsey laughed at the notion that a fiscal impact statement on petitions would impede signature gathering, because signature gatherers "are paid anyway." Only initiatives with considerable money behind them can afford to pay signature gatherers. No Colorado citizen initiative in recent decades has made it to the ballot without substantial money behind it. Dempsey is among industry advocates quick to invoke school funding in their cause, arguing that a larger setback for oil and gas drilling will result in lost property tax revenue that would go to fund schools.

The Incestuous Web of Oil and Gas Front Groups

Vaunting its "unprecedented access to opinion leaders and elected officials," Colorado Concern's website describes the group as "the colossal powerhouse of invisible politics," "an exclusive alliance of top executives," and an "invitation-only" group comprised of "more than 110 private sector CEOs and civic leaders." The website states, "Colorado Concern promotes an environment that maximizes business profitability and certainty," and boasts of "its ability to financially support issues and candidates that positively impact the state's economic well-being." A thinly veiled cover for promotion of industry at the expense of democracy, CC's professed mission "..is to ensure that the decisions that are made by our elected leaders, and through direct democracy at the ballot box, are aligned with a vision that leads to a healthy, robust and growing economy" -- translated, "approved by industry."

With two full-time lobbyists, Colorado Concern's former president Tamra Ward counted hers among 38 groups promoting HB15-1057. A member of interactive oil and gas front groups, Ward has also served on the 2014 "Leadership Team" of Coloradans for Responsible Reform; the Board of Directors of Vital for Colorado; and the Advisory Committee for Coloradans for Responsible Energy Development. CRED was founded and primarily funded by the two largest oil and gas companies operating in Colorado -- Anadarko Petroleum and Noble Energy, who finance endless media ads touting good things that fracking brings to life.

Like Colorado Concern,Coloradans for Responsible Reform (CFRR) regard their primary mission "to support or oppose ballot measures having a major impact on Colorado's economic vitality and quality of life." Any effort to address health and environmental effects of oil and gas drilling CFRR portrays in industry vernacular, as "a serious threat to Colorado's job base and economic recovery." The group decried the notion of "local control" that might increase existing 500 feet setbacks between new wells and homes "up to a half-mile."

Gov. John Hickenlooper joined CFRR in vowing to defeat Rep. Polis' 2014 Initiatives 88 and 89. Declaring "an attack on even one industry is an attack on the state's economy," CFRR wrote a news release in May of 2014 announcing that its self-described folksy-sounding "Citizens' Brigade" had in less than a week raised"over three-quarters of a million dollars" to defeat "anti-business questions" - namely, ballot initiatives intended to mitigate the effects of fracking. Group member Mayor Tom Norton denounced local control as "local tyranny," an attempt to "shut down any business someone may not like."

Seven maps reveal the intersection of Oil and Gas influence in Colorado -- an incestuous web of oil and gas front groups that heavily influence activity under the Capitol Dome. Branded by some "frackademia", the term describes the industry practice of funding and directing its own environmental and economic studies.

The Colorado oil and gas industry and its allies have funded and orchestrated studies and the selective release of their data by the Colorado University Leeds School of Business at Boulder. One such study - the 2014 Fracking Ban Report -- took the industry position that regulatory power by communities affected by fracking would hurt Colorado's economy. The report, funded by another industry front group, the Common Sense Policy Roundtable (CSPR), did not reveal the group's financial ties to the fracking industry. Such reports are swiftly and strategically leaked to industry groups, often quoted by the same industry insiders who directed and funded them.

An earlier 2014 House Concurrent Resolution sponsored by Rep. Court would have required double the number of voter signatures to place a citizen initiative on the ballot, as well as a percentage of signatures from each of Colorado's seven congressional districts. A similar measure being advanced as a 2016 ballot initiative by yet another group, Building a Better Colorado, is likely to require a super-majority (2/3 vote) to pass a state constitutional amendment, and a percentage of signatures from each congressional or legislative district.

Some cite the harmful effects of the Colorado TABOR Amendment as reason to cripple the ballot initiative process. They fail to acknowledge that TABOR was a complex multi-subject initiative that passed in 1992, before a single-subject rule was instituted in Colorado. Complex multi-subject initiatives are no longer permitted on the state ballot. Among other effects, TABOR cripples Colorado's budget by consistently ratcheting down the amount of taxes collected, depleting school funding (among other items) so that the state ranks 42nd in the nation for per-pupil spending. TABOR needs to be addressed on its own merits or lack thereof. Similar ALEC model legislation has been introduced in other states, including Florida in 2011. Too many in the political class have been unwilling to challenge anti-tax demagoguery advanced by groups like ALEC.

Those complaining about the ease of amending the state constitution by initiative might consider the ease of legislative repeal of an initiative statute, the legislature's ability to immediately reverse the will of the voters by a simple majority vote. More initiatives might be run as statutes if the voters' will could not be so easily overturned.