Let the Sun Shine In on ALEC and the Oligarchy

Even a broken clock is right twice a day, the old saying goes, and this adage was made even more apropos this past week by Texas Attorney General Greg Abbott, who issued an Open Records Letter Ruling rejecting an effort by the American Legislative Exchange Council (ALEC) to declare itself immune from the state’s public records law, after the Center for Media and Democracy (CMD) and the Freedom of Information Foundation of Texas filed briefs. Only three days later, the CMD filed a brief in Wisconsin, countering claims by that state’s Attorney General J.B. Van Hollen and Senator Leah Vukmir that legislators cannot be held accountable for violating the open records law during their entire term in office.

According to PR Watch, the story here in Texas went like this:

The Open Records Letter Ruling from the Attorney General’s office rejected the claim from ALEC’s Washington, D.C.-based attorneys that disclosure of the organization’s communications with legislators would burden its “freedom of association” rights. The Ruling was issued September 25 and released today.

“You cannot just create a special private club between lobbyists and lawmakers and then claim your communications with legislators cannot be disclosed to the public under state sunshine laws,” said Lisa Graves, CMD’s Executive Director. “Allowing this would only increase the power of special interests to secretly influence officials elected to represent real people in Texas and across the country.”

In Wisconsin, the tactic is different: ALEC is attempting to twist language in the state’s constitution to allow acting legislators to be immune from the open records requirements (and other laws) during their entire tenure in office:

In its brief, CMD argues that the claims of Senator Vukmir through the Attorney General – that the Wisconsin Constitution’s legislative privilege applies to the never-ending biennial session, rather than floor sessions — would do enormous damage to Wisconsin’s longstanding traditions of openness, transparency, and governmental accountability. Because the next biennial “session” begins immediately upon the close of the previous one, under Van Hollen’s novel interpretation, a legislator would have a perpetual grant of immunity from civil actions seeking to enforce the state’s public records law – or, for that matter, any state law with civil penalties.

“The Attorney General’s distortion of the Constitution’s temporary legislative privilege to aid ALEC would not only prevent citizens from holding legislators accountable for violating the open records law, it would also make legislators above the law for a variety of offenses, for as long as a legislator holds office,” said CMD’s General Counsel Brendan Fischer. “A corrupt legislator who promises political favors in exchange for campaign contributions, for example, would get a free pass, and would not be subject to the law’s civil penalties. A legislator who wanted to avoid divorce proceedings could sidestep service of process. This is not what the people of Wisconsin ever intended, in our Constitution or our open records laws.”

Meanwhile, Sean Riley, the director of ALEC’s Task Force on Health and Human Services, and Ed Walton, a legislative analyst at ALEC, wrote this critique (last night at 4:00 AM, apparently) of the Affordable Care Act’s rocky start (could it have anything to do with the House Republicans sabotage, I wonder?): “These so-called glitches, however, mask a much more serious concern for consumers: protecting sensitive data. The lack of sufficient security surrounding the exchanges should give potential enrollees pause.”

It seems strange to me, and by strange I mean insidious, that an organization attempting to shield itself from open records requirements—and, for that matter, an organization that professes to extol the Free Market—would, at the same time, lambaste a program aimed at helping people enroll with private insurance companies because said program hasn’t made it abundantly clear to the public how it intends to safeguard information. Riley and Walton claim to be very worried about “consumer privacy,” arguing that oversight of the ACA is not sufficient, and that the law (it is law) should be delayed until consumers can be protected: “It would be prudent, regardless of whether one supports the Affordable Care Act at all, for enrollment to be halted until HHS [Health and Human Services] can implement proven safeguards to protect consumer privacy. As things stand: Buyer beware.”

But if those same consumers want to know how ALEC is communicating with legislators (or even who ALEC counts as members), so that, you know, they can make an informed choice in the free marketplace, then they’re out of luck—unless some organization like the CMD files a suit. There are and undoubtedly will be problems with the implementation of the ACA, but this article should force you to ask yourself: “Why should I trust representatives of an organization that has helped pass anti-abortion laws in various states, using technicalities like special legislative sessions and evasions of existing open records laws?” Is ALEC really looking out for the little guy (and his social security number), or are they trying to hobble the ACA before it can start delivering free contraception, among other benefits, to millions of people?

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