Trans-legislation

The ALEC Model, Part One

The spectacular implosion of Kristi Noem has made it timely to talk about how state legislators legislate, and ways the right can be more involved.

We now know that the South Dakota legislature would have joined a growing number of states (starting with Idaho in March 2020) which have passed bills keeping men and women’s sports separate, following supermajoritarian concern with having biological males perform in women’s sports.  I fondly recall my high school “powderpuff” football game, involving women competing and men performing as drag cheerleaders, but these are different times, and what began as a joke is now at least semi-serious.  For safety and other legitimate, even compelling public policy reasons, large swaths of the country want laws protecting their daughters.  Whether this is also motivated by these same girls seeking that Title IX-mandated golf scholarship to UPenn (I am suggesting perhaps letting women’s sports implode might not be such a terrible thing) is another story.

I say “would have joined,” because after consultation with the NCAA and unnamed “prominent legal scholars” (Jonathan Turley, I’ve been told), Noem vetoed the bill.  Despite whining about “conservative cancel culture” and trying to explain her veto as “not a veto,” her presidential aspirations are dead.  Following her political seppuku, other states have continued to pass and enact similar bills.  

In this circumstance, media attention and a ready-baked win for state legislators shortcut the normal legislative lobbying process.  These lawmakers in other states could just pick up the South Dakota bill and largely pass it as-is.  The work is done for them.  But how does it normally work?  I’ll present two models, both of which are exaggerations.

In the good government model (the liberal, optimistic model), lawmakers are concerned citizens who are elected on a strong platform.  Say Joe runs a steel plant.  He notices that labor laws are bad for management and unions alike.  He runs on a platform of fixing that law.  Once elected, he is appointed to the relevant committee by his party leadership, and he proposes a legislative fix.  Through his expertise, he is able to persuade other lawmakers to pass the bill, and it becomes law.  Over years, he becomes the leading authority on labor law, reads every proposed bill, and helps tweak things.  He hires staff who are labor experts, and he trains up staff to be labor experts.  Staff work as an in-house think tank.

This is obviously not how it works.

In the capture model, lawmakers are lazy and ignorant. Joe runs a steel plant.  He is arrogant and wants to be governor so he can bulldoze his neighbor’s shed, which is his white whale.  He has hated the shed for years.  He mentions this to a friend, who recommends first running for state legislature, because the cost is less than half a million dollars.  The friend is a lawyer who represents management side in labor disputes.  He says that Joe has a reasonably good reputation among his workers, so he could credibly run on being a labor moderate, and that if Joe can commit to introducing all the bills his friends at Koch and the local chamber put on his desk (which won’t be TOO crazy, he promises), then he can obtain the funding and the staff for him.  Joe agrees, and he wins handily.  His hand-picked Chief of Staff is a young lobbyist from the management side.  Joe enjoys the cocktail parties and because this is a state with part-time legislators, he spends his time continuing to run his business, and he delegates everything he can to the COS. 

The COS has Joe introduce and support lots of bills, and Joe is happy that he looks productive.  He doesn’t read the bills, and he occasionally fields complaints, but on the whole, things are fine, and he coasts to a series of re-elections.  By sheer osmosis and his participation in something called ALEC, Joe is able to sound reasonably conversant in “cutting edge” labor law.  Due to a lack of competition, Joe becomes committee chair after only four years, and in that position his empowered Chief of Staff is able to keep labor-side bills off the calendar.  Joe is known as anti-labor by now, but orders to his steel plant are up (funny how that works), and his party leadership allows him to take certain fake votes (such as pro life bills they know will fail) so that he continues to coast to victory.  His leadership gets some complaints as well, but they buy off discontent with pork and other bills.  They bought several years of goodwill from the state universities (the hospital system is the second-largest state employer) by killing the male-female sports bill.  Joe is able to slide into his party’s nomination as a safe choice, and narrowly loses in the general election, but his star continues to rise, even though his legislative WAR is probably negative.

This second model is jaded,  but is probably closer to how things really work.  Should this bother us?  Can we stop it?

I would argue that it should absolutely bother us, and that legislators and staff should seek to emulate the first model (be altruistic and public-minded), meek as doves, but in doing so they should be wise as serpents, knowing that they cannot attain power without making deals with the devil, so to speak.  Similarly, state legislators should always have an exit option— be willing to lose an election or quit to take a stand.

This is why politicians such as Noem are so dangerous.  She was naive and the political equivalent of nouveau riche. She come out of nowhere and was granted a major windfall, tripping into a highly popular defense of our national heritage on cable news.  Through accident, she became a household name on the right, and a possible 2024 presidential contender.  But she hadn’t done the hard work of determining who she was or what she stood for, and determining just whom she could go to political bed with and who was beyond-the-pale, or determining which deals were good and which not.  So when a carpetbagging lawyer touting Federalist Society credentials picked up the phone and offered his services, showering her and her staff with attention, she accepted, because that’s what you do when you are in state government.  And now she’s dead in the water.

What can we do to break this lock?  I’ll write more on this shortly.