Conservative Lawmaker Defies Open-Records Law to Keep ALEC Dealings Secret

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Courtesy of Flickr user Mikasi.

This Article originally appeared at The Nation.

In the two years since the ALEC Exposed project revealed the role that the secretive American Legislative Exchange Council plays in shaping the laws of states across the nation, the group has had a much harder time hiding its meddling.

In fact, so much national attention has been paid to ALEC’s role in promoting restrictive voter ID laws and controversial Stand Your Ground initiatives that ALEC officials announced last year that they would shut down the task force that was responsible for promoting those measures.

But ALEC is still putting representatives of corporations together with state legislators to craft “model legislation” — especially with regard to economic and regulatory issues. And the group’s national treasurer has come up with a novel scheme for keeping the projects secret.

The Wisconsin Republican says she is exempt from open-records laws, and her state’s Republican attorney general says that’s cool with him.

Wisconsin State Senator Leah Vukmir, a key confidante of Governor Scott Walker who serves as ALEC’s national treasurer, has for months been stonewalling a legitimate open-records request from the Madison-based Center for Media and Democracy (CMD), which worked with The Nation on the 2011 ALEC Exposed project that revealed how the corporate-funded council has been working with state legislators across the country to enact measures developed by special interest groups.

As Vukmir has emerged as one of the most prominent figures in ALEC, the Center for Media and Democracy has sought information regarding bills she has proposed in cooperation with the national group. Because of her refusal to cooperate with those requests, CMD is suing to force her to turn over the records.

Vukmir is not the first legislator to try to thwart the public’s right to know. Just last year, CMD had to sue a group of Wisconsin Republican legislators to get them to turn over ALEC-related documents under the open-records law.

But Vukmir has taken things to a new, and bizarre, level.

She’s claiming that a constitutional protection against targeting legislators with nuisance lawsuits exempts her from following the open-records laws that was established by the legislature — and that legislators, state officials and the courts have respected for decades.

She’s serious about this, as is her staff.

When a process server went to her office to deliver paperwork regarding the lawsuit, one of Vukmir’s top aides was — according to a document filed in regard to the case — verbally abusive, physically aggressive and threatening. When another process server went to the office, the abuse continued.

Vukmir — with support from Republican Attorney General JB Van Hollen — is advancing an interpretation of the open-records law that claims members of the Legislature do not have to obey the rules when the state Assembly and Senate are in session. Since the Legislature is, for all intents and purposes, permanently in session, Van Hollen is effectively arguing that the open-records law should no longer apply in any meaningful way to the Legislature.

This is radical stance that raises a big question.

Brendan Fischer, a CMD lawyer, asks: Why are they willing to try to torpedo the open-records law to keep Vukmir from having to defend her position?

The answers that suggest themselves are these.

First, since Walker (an ALEC alumni) and his allies took charge in 2011, Wisconsin has seen a steady importation of proposals regarding unions, public education and a host of other issues. Instead of thinking for themselves, Walker and legislators like Vukmir seek to implement a national agenda shaped by corporate campaign donors and groups like ALEC. This is no secret. It’s been widely reported that Vukmir and other top legislative allies of the governor regularly fly off to ALEC conferences with corporate titans.

But specfic revelations regarding Vukmir’s involvement, particularly with regard to the crafting of legislation, could provide citizens with a clearer picture of who is pulling the strings. And that is a detail that the senator and the attorney general appear to be determined to keep hidden.

Second, and perhaps even more importantly, under Walker and a number of the hyperpartisan Republican governors elected in 2012, traditional models of responding to the great mass of citizens have been abandoned. The operating premise coming from these governors is one of: You’re either with us or you’re against us. Van Hollen, as a Wisconsin constitutional officer, should be with the people. Unfortunately, in this case he has chosen partisanship — like Vukmir, he’s an active Republican — over the rule of law. And the public interest.

Why? What is so vital about keeping ALEC details secret?

When state Senate Jon Erpenbach, a prominent Wisconsin Democrat, was sued two years ago by a conservative group seeking records of his email communications with constituents, the senator says, “I sought the advice of Attorney General Van Hollen, who is a constitutional officer sworn to represent the Legislature without prejudice. He refused to provide any counsel other than to tell me to acquiesce to the conservative organization’s request.”

Yet, in Vukmir’s case, Van Hollen’s lawyers are attacking the very same open-records law.

Erpenbach concludes: “If you are protecting ALEC, the attorney general will jump to represent you. But if you are protecting citizens, he apparently cannot be bothered.”

It is tough to argue with Erpenbach’s determination that Van Hollen and the Department of Justice are engaging in “blatant partisan and political actions.”

It is always unsettling when law enforcement officials enforce one set of rules for their allies, and another for their opponents.

It is even more unsettling when this is done to prevent citizens from knowing what a state is doing in their name, and with their tax dollars, but without their informed consent.

If legislators in Wisconsin, or any other state, do not have to abide by the open-records laws they enact, then “the public’s right to know” is a slogan — not a reality.

John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. His most recent book is The "S" Word: A Short History of an American Tradition. A co-founder of the media reform organization Free Press, Nichols is co-author with Robert W. McChesney of The Death and Life of American Journalism: The Media Revolution that Will Begin the World Again and Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy. Follow him on Twitter at @NicholsUprising.
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  • Chris Jonsson

    Conservative Lawmaker Defies Open-Records Law to Keep ALEC Dealings Secret

    Let’s see how that works out for them. FOIA challenged again. Is ALEC exempt from the law? They think so.

  • musicandart

    Sounds like Richard Nixon’s invocation of “executive privilege” when he was asked to turn over the White House tapes after the Watergate scandal broke.

  • Anonymous

    That is soooo Wisconsin, Michigan, Florida, Ohio, NC, SC …any place where the GOP Hholds power. Only answer is use power of the courts & ballot box to run them out of town.

  • Anonymous

    Well, this is the way the Republicans in office like to do things… the rule of law only applies when it suits their agenda and, when it doesn’t, they ignore it.

  • Lynette Jandl

    Here in Wisconsin, the great state of experiments in out-there outrageousness, we keep seeing things that are just shocking in their audacity. I do believe our Republican legislators are backed by so much money that they just think they’ll be able to get away with absolutely anything. Move to Amend will eventually foster a reversal of all this abuse of purchased power. Meanwhile, wish us luck.

  • Anonymous

    Vukmir needs to be charged with treason and go to prison. I take it seriously when a group subverts our democracy. Those elected who take the bribes should be impeached and should return their bribe money. When is the Attorney General going to step up?

  • Eric Scoles

    States have ‘treason’?

  • Eric Scoles

    State FOIL statutes don’t typically have the weight that federal FOIA law does, so they’re much easier to defy. As we see here, cronyism often gets to play a role, and there’s no real court of appeal unless you can show a violation of federal law. That can be difficult and is always time-consuming to do.

  • medcannabis1

    Welcome to the world of KochBros inspired fascism… how sad for Wisconsin and her good citizens..

    Get rid of the electronic voting machines..go back to paper ballots and see if things change in the elections.

  • Roberta

    Oh, we do, Lynette..we truly do.

  • Anonymous

    The Conservative Supreme Court also voted to allow “Citizens United” which allows wealthy conservatives to donate billions to PACs parading as nonprofits, thus being free from naming their donors.

  • Chris Jonsson

    Interesting. ALEC has made it part of their mod of operation to work on state levels and weaken their laws even more for individual rights and challenge the federal government. It has been effective, unfortunately. Only now people are beginning to question state laws trumping federal. It’s difficult to reverse.

  • Eric Scoles

    yup. They’re extremely clever, but it’s more like long-range tactics than it is like real strategy. Clever, but not very wise, you might say.

  • Chris Jonsson

    I hope you are right. They certainly have been overreaching and have become obvious to many people, although not enough of them.

  • Jim Young

    It seems it can only be considered treason if we (the US) are at war (GWOT should satisfy that), and if it aids our enemies (self destruction may aid our enemies, but I wouldn’t think that would be supportable.

    To me it is less than technical treason but more than racketeering covered by the RICO Act. It affects the entire United states when ALEC writes model laws and helps get them passed through a secretive, to me, fifth column, or front organization. I’d like at least a grand jury to look at the RICO aspects.

  • Jim Young

    I hope the results are similar.

    To me, open government would include the requirement that all lobbyist, ALEC in particular, documents (regardless of their copyright protection claims) that are provided or shown to any legislator must be available to all legislators (at the same time). No secret studies and schemes.

  • Jim Young

    Very much attention needs to be paid to the ballot boxes, too. Colorado’s recent recall election should be voided and redone (if they want to go through it again), next time with adequate accommodation for the 70% of Coloradans that typically vote by mail-in ballot.

    Apparently, no mail-in ballots may have been counted, according to some reports. How can you not count 70% of the electorate and call that a legitimate election? Even if the result is the same, DO IT RIGHT!

  • Jim Young

    I’d call it unbelievably corrupt.

    Few people would be on the watch for such dirty underhanded tricks. Most of us never imagined anyone would go to all that trouble and be able to get so many at all levels to participate in their careful, creepy, crawly, take over of the foundation positions at every local and state position they could.

    It sets the stage for a figure head to be installed and nearly impossible to remove once the corrupt under structure is in place. I think they actually might prefer having a focusing target in Obama to distract the public (with a huge PR blitz) from their dirty dealings.

  • musicandart

    This is not a debate, it is a balance of power struggle. A number of factors are defining it as un lower and lower middle class AND lower class struggle aginst a tiny super-rich elite at the top.
    Their tools include huge amounts of money, bought politicians, political stonewalling and targeting and a razor thin majority in the SCOTUS. Tf the balance of any of these factors changes, the game is over.

  • Eric Scoles

    What I mean is that treason is an act against the nation; these are violations of state law, and acts against the interest of the state of Wisconsin. It’s a treasonous spirit, to be sure; but it’s definitely not actionably treasonous under federal law, and under our federal system of organization, states can’t have treason (because states can’t claim a degree of fealty that would warrant the charge of ‘treason’ — only the fed can).

  • Jim Young

    Oh I always agreed with your point, but felt it needed a better explanation, which you have provided. Thank you.

    I do sometimes dream that more cases that are technically not winnable, would end up like Leon Uris’ “QBVII”, see The plaintiff, Dr Wladislaw Dering, “won” the legal battle but paid far more than the defendant, Uris (who actually didn’t even have to pay the half-penny award since Dering refused it, perhaps unintentionally setting himself up to pay the £20,000 court costs, as explained in the article).

    Unfortunately, the people that screamed about too many lawyers (or at least the ones they didn’t like) use them more than ever, in ways most Americans would find even worse as far as “creative” interpretation, and far more massive behind the scenes maneuvering to get laws and supposed enforcers changed/corrupted. Then they find ways to gut or corrupt enforcement, seemingly much more brazenly as Van Hollen’s totally opposite take depending on who was being asked to provide FOIA information.

    They have gotten a lot smarter/cleverer, too, avoiding initiating lawsuits that would require them to turnover embarrassing, perhaps even evidence of criminal conduct, in the discovery process (in courts that aren’t too corrupted yet). Unlike Dering, they protect their “reputations” better by not responding to critics with law suits that can backfire on them.

    P.S. I should mention the trend is to arbitration agreements and non-disclosure agreements. I think these agreements need some thorough grand jury investigations, at least.

  • Chris Jonsson

    Well said!

  • Chris Jonsson

    Walker appoints the judges. How do you fight that? Go to the Supreme Court with members of ALEC serving? They own us now.

  • Jim Rome

    What law can stop this?

  • Kenny

    North Carolina owned and operated by Art Pope & Koch Brothers.