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ALEC declares itself exempt from public-disclosure laws, and is challenged

In Minnesota, their communications were already off limits, because lawmakers long ago exempted themselves from almost all of the Minnesota Data Practices Act.

ALEC protest
Protesters gathered in Chicago, where ALEC hosted a conference last week.

Sometime in the last year or so, the super-secretive American Legislative Exchange Council (ALEC), the group that helps its corporate and think-tank members get their wish lists into the hands of state lawmakers, decided to unilaterally declare itself exempt from public disclosure laws throughout the country.

Among other moves, it has taken to stamping a disclaimer on the ideologically charged bills and other policy proposals it hands to legislators: “Because this is an internal ALEC document, ALEC believes it is not subject to disclosure under any state Freedom of Information or Public Records Act.”

Astonishing as that is, consider this: In Minnesota, their communications were already off limits — not because they are “internal,” but because the state’s lawmakers long ago exempted themselves from almost all of the Minnesota Data Practices Act.

To be more explicit, this means state senators and representatives may communicate privately with lobbyists or with organizations that specifically promote special interests, such as those of ALEC’s corporate and right-wing members, about laws the private-sector players want to see enacted.

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In Minnesota over the last three years, the group’s wish list has included “shoot-first” laws such as the one at issue in the Trayvon Martin case, lower taxes on tobacco products that appeal to youth, tort reform, right-to-work legislation and a host of carve-outs for specific companies.

‘Subject to their own rules’

“[Lawmakers] really are subject to their own rules,” said Don Gemberling, retired from his longtime post as Minnesota’s Data Practices guru and now a member of the watchdog group Minnesota Coalition on Government Information. “Here, they can pretty much do as they please.”

Stretching back as far as the administration of Wendell Anderson there have been only a couple of decisions in which lawmakers have had to disclose, he said. Both the “Phonegate” scandal of the mid-‘90s and the refusal of a Legislative Auditor long past to release an audit of Anderson’s office involved public funds, a different legal principle, said Gemberling.

Which puts Minnesota, in terms of transparency, behind Wisconsin and Texas, where a watchdog organization has spent the last couple of years exposing ALEC’s playbook. In recent weeks the Madison-based Center for Media and Democracy (CMD) has gotten involved in disclosure fights in both states.

Last week, CMD sent a letter to Texas’ Attorney General Greg Abbott refuting ALEC’s argument that public disclosure violated its right to “freedom of association.” In July, a Texas state representative who saw ALEC’s new disclaimer wrote to Abbott asking whether she had to comply with the laws and turn over her communications with the group.

Two weeks ago, a law firm retained by ALEC sent a letter of its own, for the first time in its 40-year history arguing that its documents merit a specific exemption from state disclosure laws.

(ALEC has not returned phone calls or e-mails seeking comments on past MinnPost stories. In general, its spokespeople are rarely heard from unless the group is seeking to get its statements publicized.)

Wis. legislator declines to disclose

According to its general counsel, Brendan Fischer, CMD suspects the same disclaimer stamp is the reason Wisconsin Sen. Leah Vukmir, ALEC’s state chair there and its 2009 lawmaker of the year, now asserts she has no relevant records to turn over in response to requests. In the past, said Fischer, she has complied with open-records requests. CMD filed suit against Vukmir in Wisconsin in June.  

And last fall CMD joined with Common Cause to sue a group of Wisconsin lawmakers who claimed their communications with ALEC were private because they used personal e-mail accounts to communicate. The five lawmakers settled with the groups, conceding that they had a duty to turn over the records.

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Also according to CMD, lawmakers have attempted to evade disclosure by trading files with ALEC via internet drop-box sites. Asked to turn over relevant communications, they supply the link to the folder in question, which the person or group requesting the record can’t open.

“Correspondence with ALEC is of the utmost pubic concern,” said Fischer. “You want people to be able to track what’s going on.”

Operated for decades in secrecy

The only reason the organization exists is to cater to special interests.

For decades, ALEC managed to operate largely in secrecy. Maintaining its structure as a membership organization — lawmakers pay annual dues of $50 while private-sector members pay tens of thousands — exempted it from financial disclosure laws that applied to other lobbyists.

Although the practice is barred in Minnesota, it provides legislators from other states with scholarships underwritten by its deep-pocketed members to attend policy confabs, often held at resorts. Lawmakers may bring their families.  

Two years ago, CMD and several other groups began combing through thousands of pages of leaked meeting agendas, model bills and other documents that the Wisconsin group posted to a wiki, The ensuing torrent of negative headlines was only fueled by the Martin case.

The bad publicity was followed first by an exodus of members, and then by the announcement last year that ALEC was suspending operations of its working committees responsible for its more political, less business-oriented efforts.

In March, it declared its commitment to transparency by posting a number of the model bills already exposed by CMD online. Yet two months later at its spring policy summit, no details were forthcoming.

‘They’ve just wilted in the sunlight’

“They’ve just wilted in the sunlight,” said Fischer. “So they’ve been trying to sneak back into the shadows.”

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Which ought to worry sunshine-law advocates, said longtime investigative journalist and communications specialist Gary Hill, currently chair of the coalition Gemberling serves on, which is trying to keep pressure for transparency on elected officials and government agencies.

“The public needs to see things unfold in a transparent manner to make sure things are being done in their interest,” said Hill. “It’s really damaging to the fabric of our democracy to have these things done in secrecy.”