Last month, with the inauguration of a newly elected Democratic governor fast approaching, Michigan’s Republican legislators made a last-minute attempt to ram through a bill to dramatically weaken public-sector unions. The bill would have those unions to hold a recertification vote every other year, subjecting them to possible dissolution on a regular basis and forcing them to spend scarce resources on elections rather than on organizing. It was the first time the bill had made its way onto the floor, but its contents were familiar: Much of the legislation’s language was copy-pasted from a “model bill” by the American Legislative Exchange Council (ALEC) at the group’s annual meeting just a few months earlier.
It was one of hundreds of model bills similarly designed by the corporations, trade associations, and legislators that make up ALEC, a “private-public” organization with shadowy financing that has long been an influential resource for Republican lawmakers across the country. A flurry of state laws in the past ten years weakening labor unions, restricting voting, allowing environmental degradation, and bolstering gun rights have their roots in legislation drafted by ALEC, which has acted as a kind of government in waiting, helping Republicans move with all speed once they take over a given statehouse. But ALEC’s recent appearance in the Michigan lame-duck session revealed that the group has plans for when Republicans are out of power as well—which could affect legislation in states where Democrats are inching closer to winning back control as we head into the 2020 election cycle.
To the relief of the hundreds of protesters who showed up at Michigan’s capitol in Lansing to protest the deluge of Republican bills, the union recertification proposal didn’t get enough votes to pass. But many others did, including bills to minimize the impact of a minimum wage increase, limit paid sick leave, restrict ballot initiatives, and curb the power of the incoming governor. During Wisconsin’s lame duck session, Republican lawmakers pulled a similar stunt, passing a number of bills transparently designed to rein in the authority of the incoming Democratic governor just weeks before he took office. While the union recertification was by far the most direct ALEC copy-cat, there were several others introduced in the Great Lakes states that, according to Brad Bauman of the Stand Up to ALEC coalition, “have ALEC DNA all over them.”
In Wisconsin, lawmakers passed new restrictions on early voting remarkably similar to legislation struck down by a federal judge in 2016—a pet project of ALEC legislators at the time. Another ALEC favorite to pass during the state’s lame duck limits the governor’s power by preventing him from changing administrative rules. ALEC its own Administrative Procedures Act model legislation in September, designed to “reduce the regulatory burden on private enterprise and rebuff the administrative state’s encroachment on individual liberties.” In Michigan, the legislature passed into law a bill that bans state and local agencies from requiring public disclosure by nonprofits, much like ALEC’s model policy on “donor privacy,” which anti-ALEC groups refer to as a “dark money” policy that allows right-wing groups to extend their influence.
Democrats won back seven governorships, six state legislative chambers, and more than 300 state legislative seats in November. A number of other states, like Florida and Georgia, came close to breaking up the Republican stranglehold on their respective governments. Democrats are hoping that opposition to Donald Trump, combined with a new awareness about the importance of rolling back Republican dominance at the state level, will help tilt the field in their favor in the next couple years. But as the party focuses on building power in the states, these lame-duck power grabs sent a stark message that Republican state power is not built on seats alone, but on a power structure that can’t simply be voted out of office. ALEC’s role, increasingly, is to solidify that structure in the face of a blue wave.
ALEC rose to national prominence following the 2010 midterms, when Republicans gained a devastating 721 seats, bringing a total of 25 state legislatures under total GOP control. And in many of those states, change came swiftly. “It took a long time for them to get the omnipotent power that they did in 2010,” said State Representative Chris Taylor of Wisconsin. “But once they did, they knew what they wanted to do, and they did not waste any time.” (Democrats have been known to sponsor ALEC bills, too, on issues like education and health care, but Republicans are far more likely to do so. In 2011, Democrats sponsored nearly 10 percent of the total ALEC model bills introduced, while Republicans sponsored more than 90 percent,)
In Taylor’s state of Wisconsin, then-Governor Scott Walker, backed by a strong Republican majority in the state legislature, immediately passed legislation to strip public workers of their collective bargaining rights and signed a budget cutting public school funding by more than $1 billion. In the 2011-2012 session, Walker signed into law 19 bills or budget provisions at least partially based on ALEC model bills, according to the watchdog group Center for Media and Democracy (CMD). In 2015, Walker’s “right to work” bill was a of ALEC’s right to work bill.
“I was gobsmacked—fascinated but so horrified over the power and very functional infrastructure they’ve built over the last 45 years on the right,” Taylor said. She realized that the same was true, to varying degrees, in conservative legislatures across the country, from Michigan to North Carolina to Kansas. ALEC’s efforts have been bolstered by the State Policy Network, an umbrella organization for conservative think tanks; Americans for Prosperity, a Koch-funded libertarian advocacy group; and local conservative hubs like the Bradley Foundation in Wisconsin and the Mackinac Center in Michigan.
The election of Democratic Governor Tony Evers—which was seen as a referendum on corporate power in Wisconsin, thanks in part to Walker’s unpopular decision to offer an unprecedented $3 billion subsidy to a new Foxconn plant—gives Taylor hope that ALEC’s influence in Wisconsin is waning. ALEC’s power base has been weakened at the corporate level, too: Over 100 corporate members and funders have wrote in an article exposing details of Horowitz’s speech.to the group over the past several years, as criticism of the “bill mill” has spread. Some of these companies, such as Verizon and AT&T, after ALEC selected anti-Muslim activist David Horowitz, named by Southern Poverty Law Center as “one of America’s most dangerous hatemongers,” to speak at its 2018 summit.* “There are visible cracks in ALEC world,” Taylor
But ALEC remains a powerful force. Yes, some companies have left, but the majority of its members are still there, including many trade associations of which the defecting companies are a part—and some anti-ALEC advocates warn that the diminished influence of more moderate companies has allowed ALEC to shift ever more to the right. Yes, Democrats have taken back power in key ALEC strongholds, but Republicans still hold total control in 22 states. And because of power-grab bills in states that did buck unified Republican control in 2018, it’s clear that incoming Democratic governors won’t have as much power as ALEC-backed governors did in the same seats.
Precedent suggests that these laws will be successful. When Democratic Governor Roy Cooper’s election in 2016 ended three years of Republican control in North Carolina, legislators enacted several bills diminishing his power. In the two years that Cooper has been in office, the Republican-dominated legislature has overridden 29 of the governor’s vetoes. Last year, when a reporter asked state Senate Majority Leader Phil Berger about any further plans to strip the governor’s power, he“Does he still have any?” According to CMD, 28 of North Carolina’s legislators have ties to ALEC.
“ALEC teaches state lawmakers to think about policy not as a way of solving problems but as a way of building political power,” explained Alex Hertel-Fernandez, who recently published State Capture, a book about ALEC and other conservative policy groups. According to Hertel-Fernandez, the difficulty of undoing ALEC’s handiwork through elections is not a side effect of the group’s policy strategy, but an essential aim. The broad reach of ALEC, along with the State Policy Network and Americans for Prosperity, has made this anti-democratic approach to policymaking a crucial part, he argues, of what it “mean[s] to be a conservative, pro-business state legislator.”
By focusing on policy areas that target the very landscape of who gets to have power, these groups have essentially guaranteed that the tide, if it turns against them, will do so slowly and painstakingly. Thanks to ALEC-backed gerrymandering legislation in Michigan, Wisconsin, and North Carolina, for example, Republicans retained state legislative control in November, despite the fact that Democrats received the majority of votes. Researchthat right-to-work laws—which destroy unions’ ability to donate and organize for pro-labor candidates—cost Democratic candidates between two and five percent of the vote in an average election and lowers voter turnout by approximately two percent.
“For Democrats to take advantage of their gains, they need to have that organizational landscape to buttress their lawmakers,” said Hertel-Fernandez. Winning seats isn’t enough, he argues, if Democrats can’t institute policies that grow Democratic legislative power in the long term. “I don’t see that being built in a significant way,” he added.
Absent strong public-sector unions, or sufficient long-term investment in state or local power-building from progressive funders, some left-leaning organizations have emerged to offer necessary coordination between state lawmakers, advocates, and researchers. The State Priorities Partnership (SPP) and the Economic Analysis and Research Network (EARN) both operate as state-level networks of center-left think-tanks producing research on issues like welfare reform and the minimum wage and helping coordinate between legislators in various states. The State Innovation Exchange (SiX) helps draft progressive legislation that lawmakers adapt to their local context, offering a type of support similar to what ALEC has long provided to conservatives.
November heralded a hopeful opening to repeal harmful ALEC-backed legislation and advance a progressive local agenda. In Kansas, where Democrat Laura Kelly replaced incumbent Governor Kris Kobach (who once bragged about trying to persuade ALEC to expand its anti-voting rights campaigns), progressive legislators are working to expand education funding and Medicaid. In Colorado, where Democrats gained both the governor’s mansion and the state legislature in November, the focus is on expanding local control over minimum wage laws and access to paid family leave. Such “quality of life” legislation is seen as essential to undoing some of the damage ALEC-backed legislation has done not just to people’s lives, but to democracy as a whole. “One of the things that’s been so destructive about ALEC over the years is the way they’ve been able to completely undermine people’s faith in government,” said Naomi Walker, director of EARN. “If progressives would focus more on passing local and state policy that could really make a difference in people’s lives it would help reverse some of the undoing of our social fabric that ALEC has been able to achieve.”
Through knocking down the pillars of ALEC’s anti-democratic agenda, advocates like Walker hope to reclaim states from conservative monopoly. Progressive policy groups are counseling legislators on how to make the redistricting process in their states more transparent ahead of 2020. Voting rights has become a rallying point for progressive groups across the country. And campaign finance reform, which would hamper ALEC’s cash-flow, is gaining traction, too.
But balancing such aspirations with beating back the constant barrage of anti-democratic legislation from the right poses a challenge. In Florida, as progressive challenger Andrew Gillum threatened to overtake Governor Rick Scott in the polls, Republicans pushed for a constitutional amendment to limit property tax increases, which was approved. Voters approved a similar amendment in North Carolina, where Democrats broke the Republican supermajority on November 6. “The strategy has to be to stay a step ahead of it and spot these trends,” said Nick Johnson, who directs SPP. “We’ve been working to try to put a spotlight on that stuff early enough so we can block it before it takes effect.”
In Virginia, where Democrats are close to flipping the state legislature next year, the power grab is already quietly underway. After a federal panel of judges last week approved new district lines in the state that strengthen potential Democrat-leaning districts, Delegate Mark Cole, a former ALEC Education Task Force member, introduced a constitutional amendment to require equal partisan representation in the state’s independent redistricting commission, regardless of districts’ shifting party preferences. As democratic contests across the country begin to tilt against the right wing, there seems to be no limit to its assault on the rules.
*A previous version of this article incorrectly stated that David Horowitz “headlined” ALEC’s 2018 summit. He was merely one of the summit’s speakers. We regret the error.