New Works in the Field

How the Right Won the States: A Review of Hertel-Fernandez’s State Capture

Editors’ Note: Henry Farrell reviews Alexander Hertel-Fernandez’s State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States – and the Nation. Read Hertel-Fernandez discuss his own research on ALEC and conservative “state capture” in the HistPhil forum on conservative philanthropy.

A couple of months ago, Yvonne Wingett Sanchez and Rob O’Dell wrote a long journalistic article on the influence of ALEC, the right-wing American Legislative Exchange Council, on legislation in U.S. states. ALEC has had enormous influence on state legislatures by providing model bills and courting lawmakers. O’Dell suggested on Twitter that this marked “the first time anyone has been able to concretely say how much legislation is written by special interests.” This … wasn’t exactly accurate. Columbia University political science professor Alex Hertel-Fernandez, who is briefly quoted in the piece, had recently published his book State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States – and the Nation, which applied similar data to similar effect.

It was a real pity that the book didn’t get the credit it deserved, and not just for the obvious reasons. While the article was good, it focused on describing the outcomes of ALEC’s influence. The book does this but much more besides. It provides a detailed and sophisticated understanding of how ALEC has come to have influence throughout the U.S., how it is integrated with other conservative organizations, and how progressives might best respond to its success.

It’s a great book – crisply written, straightforward, and enormously important. It is energetic and useful because it is based on real and careful research. Hertel-Fernandez’s politics are obviously and frankly on the left. But even though his analysis starts from his political goals, it isn’t blinded by them so as to distort the facts.

Like Sanchez and O’Dell’s piece, Hertel-Fernandez’s State Capture spends a lot of time documenting how ALEC has indeed had influence. His work received no cooperation from ALEC itself, which declined his request for records (another organization cancelled his visit to a nominally open conference, when they realized he was a lefty rather than a true believer). This led him and his collaborator, Konstantin Kashin, not only to build on leaked data from within ALEC itself, but to visit state legislative libraries and other repositories, and copy, scan and convert proposed legislation that had been archived (when members of state assemblies donated their records) into machine readable text. They then used plagiarism-detection software to find the similarities between ALEC-proposed legislative language and the actual legislation. They found approximately 10,000 bills, and 1,500 pieces of enacted legislation that visibly included text from ALEC models. Much of this legislation is on important topics – e.g. efforts to privatize government functions, and to make voting more difficult and gun ownership easier – and has had important consequences in pushing a conservative anti-government agenda.

ALEC played a key role – together with the State Policy Network (SPN), an association of conservative think tanks – in pushing legislation that was deliberately designed to undermine public sector unions. Notably, this was intended to help change the structural conditions of America’s politics. As SPN’s head emphasized, these reforms had the promise of “permanently depriving [italics in original] the Left from [sic] access to millions of dollars in dues extracted from unwilling union members every election cycle” and making it far easier to pass other “pro-freedom initiatives.” One can make a plausible case that it succeeded – Hertel-Fernandez’ work with James Feigenbaum and Vanessa Williamson suggests that such measures led to a 3.5% drop-off in votes for Democratic candidates, and a 2% drop in voter turnout.

The book does far more than just to detect influence. It also inquires into the conditions that enabled that influence. These include, most obviously, the infrastructure of ALEC itself. It’s notable that instead of treating the American conservative movement as monolithic, Hertel-Fernandez looks carefully at its fissures and internal disagreements. The book has a lot of highly valuable information on the Koch organization, and the state level activities of the Koch-funded organization, Americans for Prosperity. However, in Hertel-Fernandez’ description:

[i]t is certainly true … that ALEC has been supported by the Kochs’ main corporate arm. But … [i]t is neither simply a front for corporate lobbying nor another piece of the Koch network. Instead, it is best seen as a coalition that has attempted to reconcile the varied preferences of big businesses, firebrand conservative activists, and wealthy donors. That task has not always been easy. ALEC has at various points leaned too far toward favoring one set of constituents over the others – sometimes resulting in backlash.” (p.24)

ALEC has been extraordinarily influential, but it has also been very fragile and at various times, “could well have fallen apart.”

Hertel-Fernandez also details the internal structures of ALEC. Policy formation is delegated to “task forces,” where businesses that contribute more to ALEC and have a higher membership status have the last word on legislative recommendations. This has created “bidding wars” that brought in more revenue. The pay-to-play approach heads off a lot of potential clashes by making it clear how disputes will be resolved. Furthermore, many divisions are manageable. Businesses might like higher healthcare spending (if it doesn’t hurt their bottom line) opposed by others in the conservative coalition, but it is rarely an urgent priority for them.

However, managing the internal tensions within ALEC has become more difficult in the very recent past, as ALEC has become more publicly controversial. For example, ALEC began to press for social conservative priorities as well as business goals, as the NRA and its chief lobbyist Marion Hammer became more involved in ALEC’s criminal justice group, and as conservative activists and legislators became more influential in its internal deliberations. This did not present a major problem for more mainstream businesses involved in ALEC, so long as no one paid much public attention to what ALEC was doing. However, after the death of Trayvon Martin, progressive groups such as Color of Change began to inquire into ALEC’s role in pressing for “stand-your-ground” rules and mounted a public campaign against businesses that were members of ALEC, leading to a substantial decline in membership and fall in revenues. The businesses that left tended to be exposed to consumers, or to have shares owned by public employee pension funds. Groups like ALEC work best when they are in the shadows.

So why has ALEC had such influence on state legislators? Hertel-Fernandez has a straightforward answer. These legislators are very often amateur politicians – badly paid, with very few resources of their own to make good laws. This means that a little bit of money to fund conferences in nice places, with opportunities to bring spouses and family along, can go a long way. This isn’t straightforward corruption – it is the building of relationships, and the cultivation of influence at the stage where legislation is first considered, rather than the more obvious forms of home-stretch lobbying. And when legislators do not have the resources to research issues themselves, it is easy to lean on proposed legislation provided by others to solve a given problem.

Hertel-Fernandez does a series of statistical tests to establish whether these arguments are plausible, and the results are striking. Unsurprisingly, party affiliation, and the number of public employees in one’s district, affect the willingness of legislators to sponsor ALEC-provided bills. But lack of experience counts too: inexperienced legislators are more likely to sponsor ALEC legislation. States with lower pay for legislators, shorter sessions and less research assistance are substantially more likely to introduce and pass ALEC-drafted bills that could be identified by plagiarism software. A relatively small amount of resources can have big consequences, especially because ALEC faces no organized competition from liberals or the left. There is no progressive counterpart to ALEC, and various efforts to build one have foundered, because small-‘L’ liberal funders tend not to care very much about state level politics, dislike overt partisanship, and have short attention spans.

This is a book that everyone on the U.S. left and center should read to understand what to do, while those on the right will read it to see what has been done. Its key lesson is that American politics is being transformed on a level that few pay attention to. State-level politics is less glamorous than federal politics and national policy-making. Yet precisely because it is so starved of attention, it is easy for organized actors to do a lot with a little. ALEC is one of a ‘troika’ of rightwing organizations identified by Hertel-Fernandez, that has appreciated this opportunity, and taken advantage of it.

One key message of the book is that ALEC and similar groups think a lot about structural politics – reengineering politics to advantage groups that promote their interests, and disadvantage or destroy groups that oppose them. As Hertel-Fernandez describes it – “the troika thinks about policy not just as a means of achieving substantive goals but as a way of explicitly reshaping power relations.” It uses “policy as a means of reshaping political power.” What this means is that political power can be path dependent, and a product of increasing returns to a feedback loop in which policy changes reshape power relations allowing further opportunities to reshape policy, and so on. Hertel-Fernandez’s book suggests a sharp asymmetry in American politics. Even in an America where the left is re-energized, it is nearly impossible to imagine Democratic-linked organizations seeking to destroy conservative powerhouses such as ALEC or the Federalist Society in the ways that ALEC and the Federalist Society have worked to destroy unions.

Hertel-Fernandez presents strong evidence that ALEC and its sister organizations pull U.S. politics away from the democratic preferences of citizens. He suggests that one plausible way to counter their influence would be to professionalize state legislatures – give legislators higher pay and much more resources to research and write their own bills, with longer legislative sessions. Higher publicity can increase the costs to businesses of remaining in ALEC – but many powerful businesses are still members, even after years of terrible publicity. Hertel-Fernandez argues that the best response would be for liberals and the left to create their own cross-state networks of organizations, learning both from ALEC’s successes and its mistakes. This will be hard – but perhaps not as hard as it might have seemed a few years ago. Foundations are now paying more attention to what is happening at the state level, even if their efforts are still disjointed, while Sean McElwee and other members of the new left are pressing for attention and money for state-level organizing. For progressives, the greatest difficulties, as always, are in disrupting the incumbent economies of money and attention and in rebuilding them so that they are better fit for purpose of representing ordinary citizens’ democratic choices.

-Henry Farrell

Henry Farrell is professor of political science and international affairs at George Washington University. He works on a variety of topics, including democracy, the politics of the Internet and international and comparative political economy. He has written articles and book chapters as well as two books, The Political Economy of Trust: Interests, Institutions and Inter-Firm Cooperation, published by Cambridge University Press, and (with Abraham Newman) Of Privacy and Power: The Transatlantic Fight over Freedom and Security, forthcoming from Princeton University Press.

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