Those who serve in legislative bodies seldom read what they vote on and virtually never write the bills they drop into the legislative sausage machine.
Cheap shots have been taken at the Affordable Care Act — Obamacare — on the ground that most of the Congress that voted for it never read it. The shot is true. What makes it cheap is ignorance.
Cheap shots were taken within my tribal government at former Principal Chief Chad Smith because, working on a law drafting project for the tribe as a young lawyer, he started with a photocopy of the Oklahoma law on the same subject. As best I can tell without asking Smith directly, the shot is true but, again, what makes it cheap is ignorance.
People who serve in legislative bodies — federal, state, tribal — seldom read what they vote on and virtually never write the bills they drop into the legislative sausage machine.
What, pray tell, would be the point of a legislative floor debate when no amendments are offered? OK, there are cases, such as treaty ratification, where all that is on the table is an up or down vote. In a terribly partisan situation, there’s a temptation to offer frivolous amendments that can be turned into frivolous 30-second ads just because political gamesmanship has come to trump governing. In normal times, it’s most often the case that a legislator who is perturbed by some oversight or down side in a bill can make the problem go away with a minor change.
Like all process, amendments are subject to abuse. The Affordable Care Act was loaded up with Republican amendments in the Senate to attract Republican votes, but the Republican votes were an illusion. GOP opposition to the bill was about opposition to any national health care plan and anything that might make Barack Obama look like a real president. Those objections cannot be cured by amendment.
Then there’s “chubbing,” the practice of attaching something to the bill that is so obnoxious that even the original sponsor will vote nay. A famous example is dropping “sex” into the list of prohibited grounds for discrimination in the Civil Rights Act of 1964. This was thought to be absurd. If it passed, women could be firefighters or police officers. Men could be flight attendants. Nobody would allow that to become law, right?
In that case, chubbing backfired.
Most people honking about Congress not reading what they vote on have never read a bill, and would be hard put to translate:
(a) In General- A group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage.’; and
(B) by transferring such section (as amended by subparagraph (A)) so as to appear after the section 2703 added by paragraph (4); (3)(A) in section 2702 (42 U.S.C. 300gg-1)–
(i) by striking the section heading and all that follows through subsection (a); (ii) in subsection (b)–
(I) by striking ‘health insurance issuer offering health insurance coverage in connection with a group health plan’ each place that such appears and inserting ‘health insurance issuer offering group or individual health insurance coverage’; and (II) in paragraph (2)(A)–
(aa) by inserting ‘or individual’ after ‘employer’; and (bb) by inserting ‘or individual health coverage, as the case may be’ before the semicolon; and
(iii) in subsection (e)–
(I) by striking ‘(a)(1)(F)’ and inserting ‘(a)(6)’; (II) by striking ‘2701’ and inserting ‘2704’; and (III) by striking ‘2721(a)’ and inserting ‘2735(a)’; and
(B) by transferring such section (as amended by subparagraph (A)) to appear after section 2705(a) as added by paragraph (4); and
(4) by inserting after the subpart heading (as added by paragraph (1)) the following:
What you see above is an actual snippet of the Affordable Care Act, Obamacare, the Great Unread.
Legislatures normally have platoons of young lawyers who work as drafters for the entire body. The legislators put their raw ideas into a hopper and it’s the job of the permanent employees to find where the ideas should go and how they should be expressed so as not to conflict with what’s already there. In Washington, these folks work for the Office of Legislative Counsel. In Texas, they work for the Texas Legislative Council.
No legislator has to go into a room alone and create a law from scratch, and it’s a serious question whether laws should be born that way even if it were commonly possible.
No legislator has to go into a room alone and create a law from scratch, and it’s a serious question whether laws should be born that way even if it were commonly possible. When a tribe makes laws, it would be foolish to pay no attention at all to the organization and common language usage in the state where the tribal legal system must function.
This emphatically does not mean tribes should follow state law, but they should deviate from state law with purpose. The choice the state makes is not always appropriate for the tribe, but a tribe making a different choice should base it on something more important than confusing non-Indian lawyers.
This is why beating up the young Chad Smith at that time for starting with Oklahoma law is a cheap shot. Should he start with Alaska law or Navajo Nation law? Why start with a blank page when lots of smart people have been thinking about the same issues? Who is going to use this law, anyway? Mostly tribal advocates and lawyers first licensed in Oklahoma.
There is one huge difference in tribal laws that has to be kept in mind. All state laws, with the exception of Louisiana, are written with the backdrop — as computer nerds say, the “default setting” — of English Common Law. Tribal laws are not. They are written with the backdrop of tribal traditional law and, colonial propaganda to the contrary, we all had traditional law.
Tribal officials, particularly judges, have a duty to make decisions consistent with tribal traditions or say why not. This is why we should not have non-tribal people doing this work unless there is simply no tribal person available to do it. It’s not about the jobs; it’s about understanding and accounting for tribal traditions.
We all know we don’t want crooks representing us, but the facts on the ground in a floor debate should illustrate why reputation is everything. Early in his career, it was said of Rep. Lloyd Doggett (D-TX) “he’s so honest you could shoot craps with him on the telephone.”
That reputation matters in a floor debate when you drop an amendment on the table and you must take up the microphone and explain to people not on your political side what your amendment does and why. They are not going to read it.
Because there is no time to read it and because it’s not written in plain English anyway, the person standing at the microphone has to be honest enough to shoot craps with him on the telephone because that’s a pretty good description of the process. Otherwise, anything he proposes is voted down based on his general political orientation.
Not all laws come out of the regular bureaucracy. Some lobbyists are lawyers, and those who are not employ lawyers, and lobbyists are happy to take on as much of a legislator’s work as they are allowed. All of this description about elected representatives and the bureaucrats who serve them is backdrop to the matter of lobbyists going beyond giving out information and actually writing laws.
There’s an 800-pound gorilla in that cage that claims it’s not a lobbyist, and he is known as the American Legislative Exchange Council (ALEC). ALEC is an organization that brings together big corporations, the outfits that Mitt Romney reminded us and the Supreme Court instructs us are “persons” with state legislators.
ALEC gives legislators the gift of ready-made laws that privilege corporate persons over human persons.
ALEC gives legislators the gift of ready-made laws that privilege corporate persons over human persons. Because ALEC only works this agenda in state legislatures, I need to explain why Indians should care, because Indian law is a federal sausage rather than a state one.
ALEC is God’s gift to corporate America, tying it directly to elected legislators and providing the vehicle for the interests of corporate persons to trump the interests of human persons.
What ALEC “exchanges” are model statutes, directed toward:
- lowering taxes
- beating back the Environmental Protection Agency’s “assaults on state sovereignty”
- shifting the risk of pension investments for public workers from the taxpayers (employers) to the workers
- the laudable task of “decriminalizing” America accomplished by adding a guilty knowledge requirement to every criminal law that would make air and water pollution laws virtually unenforceable. Right now, if you are the corporate person who owns the pipe the filth came out of, you are criminally liable for that filth. Add a guilty knowledge requirement and you can’t be prosecuted unless the government can prove what happened at the other end of the pipe, which is protected by the corporate person’s Fourth Amendment rights.
The short version of the ALEC agenda is lower taxes and therefore lower spending and let the environment take care of itself. It is to move assets to corporate persons from human persons and allow corporate persons to put negative consequences to economic activity off on the commons rather than having those who profit from environmental destruction pay for it.
Back in 2002, the Defenders of Wildlife and the Natural Resources Defense Council published a report on ALEC’s activities on behalf of corporate polluters. At that time, biannual $50 dues paid by legislators made up only about 1 per cent of ALEC’s budget, and entitled the members to invitations to confer in prime tourist destinations on ALEC’s dime. Corporate dues, on the other hand, ranged from $5,000 to $50,000.
ALEC’s idea of “keeping criminals off the street” naturally entailed the privatization of prisons and support for corporations that would build prisons on spec and then lobby for laws to fill the prisons, preferably with nonviolent prisoners who are easier to supervise for profit.
ALEC’s “Task Force on Criminal Justice” included Corrections Corporation of America, the largest operator of private prisons, and National Association of Bail Insurance Companies, representative of the corrupt and inefficient bail bond system that transfers money in breathtaking amounts from poor people accused of crime to corporations that provide a “service” for the money — getting out of jail — that in fact comes from the government.
ALEC once funded a “conference on indoor air pollution” with money from the tobacco industry.
ALEC led opposition to states enacting MedicAid formularies, which the Congressional Budget Office estimated would save state and federal governments together half a billion dollars over five years — at the expense of big drug companies funding ALEC.
ALEC was the invisible man in state government until it involved itself in the interests of the National Rifle Association, which has for some time been less the interests of gun owners than the interests of gun manufacturers.
ALEC was the invisible man in state government until it involved itself in the interests of the National Rifle Association, which has for some time been less the interests of gun owners than the interests of gun manufacturers. That is, laws directed to surfing the demographic trends by selling more guns to fewer customers. In 1993, ALEC began producing for the NRA by opposing a waiting period to buy guns.
The ALEC-NRA axis got its mammary glands in the wringer with the homicide of Trayvon Martin, which exposed an NRA funded and ALEC led spread of “stand your ground” laws of the kind that sunk the prosecution of the man who killed a teenager armed only with candy and iced tea.
The Guardian reported late in 2013 that ALEC has lost membership since its role in “stand your ground” became common knowledge. Corporate memberships dropped from 280 to 214 and legislative memberships from 2,200 to 1,810 (still almost a quarter of all state legislators in the U.S.) according to documents posted on the Guardian website. The corporations that are the backbone of ALEC funding are vulnerable to the decisions of consumers.
While the Guardian report did not note the fact, the Martin killing was in the news at the same time ALEC’s role in the wave of voter suppression laws deployed against Indians, African-Americans, and Hispanics, also became public. In response to the disinfectant property of sunshine, ALEC disbanded the “Elections and Public Safety Task Force” that had produced voter suppression legislation against the minority vote and legislation to pump up the sales of firearms.
The ALEC Board met in Chicago on August 6, 2013, under the aegis of their ongoing mission statement: “To advance free markets, limited government and federalism.” Federalism is, by ALEC’s lights, the old wine of “states’ rights” in policy bottles that can quickly become Indian fighting.
We can see Indian fighting in ALEC’s model “Resolution Demanding that Congress Convey Title of Federal Public Lands to the States,” which ignores tribal interests. ALEC touts a model “Commission on Federalism Act” wherein the commission created contains no tribal representation.
ALEC presents a “State Urban-Woodland Fire Safety” statute with the purpose “to create healthier forests and reduce the risk of catastrophic forest fires for communities by: creating state urban-wildland fire safety committees; authorizing municipalities and counties to using zoning based on wildfire risks; create an office of the state forester to improve forest management; and create healthy forest pilot projects.” This is allegedly to be accomplished with no tribal input.
The Chicago board meeting considered establishing “The Jeffersonian Project” as a lobbying arm, because the IRS is breathing down the necks of 501 (c) (4) organizations that engage in political activity.
The Board established job descriptions for state chairs, which come in private (corporate) and public (legislator) flavors. The description includes “I will act with care and loyalty and put the interests of the organization (ALEC) first.” The public chairs, to my plebian understanding, were elected to put the public interest first. The private chairs would like us to think their corporations do the same.
Prominent on the “prospect list” put forward by the ALEC Membership Committee in Chicago is Slade Gorton, LLC, the firm headed by the most prominent Indian fighter of our times. The Committee also put forward a “Prodigal Son Project” to recoup memberships lost over the voter suppression and homicide issues.
That project contains a long list, but the ones most import to ordinary human persons who spend money would be: Coca-Cola, Pepsi, Kraft Foods, McDonald’s, Wendy’s, Wal-Mart, Dell Computers, John Deere, MillerCoors, HP, Best Buy, Walgreen’s, CVS, Wells-Fargo and Bank of America. There’s also Yum! Brands, which includes KFC, Pizza Hut, and Taco Bell. Keep in mind that these are not the bad guys. These are the ones that quit when ALEC showed its true colors to the general public.
What about the other side, the “public members,” the legislators elected by human persons who are expressing more regard for corporate persons? ALEC claims two states with significant tribal populations, Iowa and South Dakota, had 100 percent of the legislatures on board. Other states have less alarming percentages: Alaska 15 percent, Arizona 38 percent, California 9 percent, Minnesota 20 percent, Montana 24 percent, North Dakota 31 percent, Nebraska and New Mexico 35 percent, Nevada 22 percent, Oklahoma 47 percent, Washington 22 percent.
These states are picked to show the structural disadvantage to Indians if ALEC should adopt an explicit Indian fighting agenda instead of the implicit one it follows now. This would be explicit Indian fighting in addition to supporting air and water pollution, bail bondsmen, private prisons, voter suppression, and loose regulation of homicides — all of which affect Indians disproportionately. This is also in addition to the fact that all the American Indians I know are human persons, not corporate persons.
This was originally written as a two-part wake up call to Indian Country but the only drawback to ALEC that is peculiar to Indians is the structural disadvantage it creates for Indian issues, issues focused on tribal sovereignty as a means to protecting the environment on what’s left of our lands. Texas is home to only three tiny reservations, but Texans generally should be concerned that ALEC claims 81 our of 181 legislators as “public members.”
It appears to me that human persons have a political position as adversaries to ALEC to the extent that they breathe air and drink water and do not wish to pay for the privilege.
I have listed what ALEC calls the “prodigal sons” for the reason that telling these corporations they have done the right thing is way more effective than making empty boycott threats against those that have not. As to the “public members,” the fact of membership or not needs to be brought up in every candidate questionnaire and at every public forum.
We don’t have the money to send our pols to ski at Jackson Hole, but we can withhold our vote from those who would rather represent the corporate persons in their district than the human persons. ALEC membership needs to become understood in terms of the labor song repurposed to a freedom song, Which Side Are You On?
[Steve Russell lives in Sun City, Texas, near Austin. He is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. Steve was an activist in Austin in the sixties and seventies, and wrote for Austin’s underground paper, The Rag. Steve, who belongs to the Cherokee Nation of Oklahoma, is also a columnist for Indian Country Today. He can be reached at email@example.com. Read more articles by Steve Russell on The Rag Blog.]