How Big Business Has Triumphed in State Legislatures on Civil Liberties, Higher Education and Energy

Wednesday, 18 July 2012 00:00By Steve Horn and Sarah Blaskey, Truthout | Report

(Photo: Judge and gavel via Shutterstock)

This report is part 3 of a four-part exclusive series, The Other ALECs Exposed.

Assaults on civil liberties, public higher education and the ecosystem have been initiated in statehouses nationwide over the past decade. In these various policy spheres, the corporate agenda has trumped a people-centric agenda.

What’s the thread that ties it all together? And how did extreme policies become normalized in the states?

Over the past year, the American Legislative Exchange Council (ALEC) has received the lion’s share of coverage for its documented role in advancing the corporate agenda in statehouses nationwide.

Parts one and two of Truthout’s “Other ALECs Exposed” ongoing series have shown that there are other nonprofit and for-profit entities pushing that agenda.

ALEC is a powerful force, but not the only 501(c)(3) non-profit organization currently being utilized by multinational corporations to implement the corporate playbook in the United States. This metaphorical playbook is designed to corrupt state-level policy and policymakers across the country, on both sides of the aisle, turning multinational corporations’ wish lists into “business-friendly” legislation that undermines the needs of citizens.

These nonprofit organizations, or “Other ALECs,” include the likes of the Council of State Governments (CSG), the National Conference of State Legislatures (NCSL) and the State Legislative Leaders Foundation (SLLF).

In part three of our series, we will show how some of the corporate agenda is in action in the statehouses and has been enacted with more than nominal bipartisan support. In particular, we’ll hone in on the pre- and post-9/11 assaults on civil liberties with regard to domestic material support for what has been labeled “terrorism,” and on the use of biometrics; the Sallie Mae-sponsored undermining of public higher education; and support for ecologically destructive forms of energy development or energy use: fracking, ethanol and so-called “clean coal.”

These policies were systematically ushered in by some of the Other ALECs – lobbying organizations promoting corporate agendas in our statehouses and in Congress.

Civil Liberties: Biometrics and Material Support for “Terrorism”

The assault on civil liberties in the United States is generally associated with post-9/11 hysteria and a Bush administration that facilitated a transformation of the war on terror into what journalist Jane Mayer has called the “War on American Ideals.”Observers such as the American Civil Liberties Union (ACLU) have come to the realization that, under current President Barack Obama, the onslaught on some key civil liberties has become the “New Normal.”

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Many people concerned about these policies, though, may not realize that the assault on the civil liberties of dissenters in the United States in some instances pre-dated the post-9/11 era. Many also do not realize that a number of recent policies that undermine civil liberties have been advanced through state governments and not just federal agencies.

“I think a lot of people believe the false trope that liberty started getting attacked in the name of security after 9/11 and that’s when the constitutional crisis started. It actually started well before that and you can see the beginnings of it in the rise of mass incarceration, where constitutional rights around the criminal process were basically being run roughshod over by executive branch prosecutors and courts,” Shahid Buttar, executive director of the Bill of Rights Defense Council, told Truthout. “In the counter-terrorism context, the particular arena in which First Amendment rights were first under attack was not prosecution of Muslims post-9/11, but rather environmentalists in the late 1990s – who were serially not just criminalized, but designated as terrorists.”

Exhibits A and B of the assault manifested themselves as “suggested state legislation” (SSL) enacted by CSG in 1998 and 2003, respectively. SSL is CSG’s version of ALEC’s infamous “model bills.”

“Material Support” for International “Terrorism”

Three years before the 9/11 attacks, in 1998, CSG published SSL, or a model bill, simply titled “international terrorism.” “Terrorism,” of course, is a loaded term.

As Salon’s Glenn Greenwald has opined, “terrorism” is: “the single most meaningless and most manipulated word in the American political lexicon. The term now has virtually nothing to do with the act itself and everything to do with the identity of the actor, especially his or her religious identity.”

CSG’s bill offers a very specific definition of “terrorism,” yet its interpretation is open for abuse by courts.

The CSG bill’s introduction reads, “This act makes it a felony offense under state law for people, charitable organizations, professional fundraisers or professional solicitors to solicit or provide material support or resources in support of international terrorism.”

“Material support” is the key operative term.

As the model explains in defining “material support”: “[this] means currency or other financial securities, financial services, lodging, training, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets.”

Left off the table, probably accidentally: who defines “terrorism” and what his/her/the organization’s agenda is, the motives behind labeling a group or person a terrorist (and leaving other people or groups off the list), and how malleable the term has been, as Greenwald pointed out, since its popularization in the United States in the 1980s under then-President Ronald Reagan.

“In 1985, when I was the deputy director of the Reagan White House Task Force on Terrorism, they asked us – this is a Cabinet task force on terrorism; I was the deputy director of the working group – they asked us to come up with a definition of terrorism that could be used throughout the government,” Edward Peck said in a July 2006 interview on Democracy NOW! “We produced about six, and each and every case, they were rejected, because careful reading would indicate that our own country had been involved in some of those activities.”

Put another way, one man’s terrorist is another man’s freedom fighter. And sometimes someone labeled a terrorist is not even a fighter at all.

The material support for terrorism clause has proven so controversial that it has gone all the way to the US Supreme Court, which found it constitutional in the June 2010 Holder v. Humanitarian Law Project case.

Was the CSG SSL – originally Illinois HB 3233 – the precursor to Holder?

“Languages of statutes are never applied in the abstract. They’re applied by executives, and if you’re lucky, they’re reviewed by judges later,” Buttar told Truthout. “The Holder v. Humanitarian Law Project case saw a very extreme and aggressive interpretation by the executive branch, and a very extreme, passive acceptance of that standard by the judiciary. What we’re looking at for the CSG model is just statutory text, so it turns on the interpretation of these authorities and what courts do and do not uphold or object [to] in order to constrain the abuses of these authorities down the road.”

The CSG assault on civil liberties, though, goes beyond the bounds of the criminalization of material support for terrorism and delves into the dark world of biometric technology and the ever-growing surveillance state.

Biometrics Galore

CSG has also provided a key platform to promoters of biometric technology and their gross intrusions on civil liberties. More specifically, CSG approved a model bill on this issue in 2003, which was echoed by a slew of bills passed in California, Connecticut, Nebraska, Pennsylvania, Texas and Virginia that promote, in various forms, privacy-invading biometric technology.

The California bill, Senate Bill 661, is mild, at least compared to other states. It mandates that “every application for an original or renewal of a driver’s license or identification card is required to contain, among other things, a legible print of the thumb or finger of the applicant.”

Other states are even more aggressive in their onslaughts on privacy, which has long been a cornerstone in the protection of civil liberties.

Take Nebraska, for example. LB 924 of 2002 “would authorize the state department of motor vehicles to use a biometric identifier, such as a fingerprint, retinal scan, facial mapping, iris imaging, etc … “

Buttar also believes such bills lack the proper, bread-and-butter constitutional checks and balances.

“In this context of biometric analysis, collection, retention and dissemination, the check and balance looks like several pieces, the first of which is a warrant requirement, a judicial warrant requirement, before any data is collected,” he told Truthout. “There needs also to be legislative oversight opportunities throughout the process of retaining this data. It’s very important to have intra-executive checks like audits by an empowered inspector general.”

Buttar also noted, “I don’t know if any of the bills included all of those things. And although some of them included a judicial warrant requirement, the model, very conspicuously, did not – which in my mind is absolutely a suspicion and very likely a tool for future abuses.”

The Higher Ed Agenda: Performance Standards, Student-Loan Profiteering and Attacks on Academic Freedom

Higher education is another policy arena covered by ALEC and “The Other ALECs.”

Flawed Performance Standards: Purposefully Flawed to Push the Corporate Agenda?

Often there’s more to a bill than meets the eye, especially when the language is arcane and the bill is long. A case in point: CSG’s 1998 “Higher Education Performance Standards” bill.

Although it appears to be fairly harmless on the surface, critics say the bill, in actuality, contains many alarming features when read with care. In an email interview with Truthout, Nseabasi Ufot, former government relations officer for the American Association of University Professors, listed 11 key red flags:

The red flags Ufot identifies include the following:

• “This bill seeks to reorganize a state’s entire public higher education system, including the development of performance standards and the evaluation of institutions’ ability to meet said standards with no faculty input and without meaningful input from all of the state’s public colleges and universities. The Commission calls for a total of 14 members, with only 3 members representing public colleges and universities.”

• “It intimates, and in a few places outright declares, that the purpose of higher education in the state is to support the state’s economic interests, or to serve the business community.”

• “Includes a mandate that public colleges and universities cooperate and collaborate with private industry, but does not include an explanation.”

Passed in 1998 by CSG, the bill foreshadows the ongoing assault on public higher education in the United States and the rise of increasingly corporate-financed public research universities.

The Other ALECs’ higher education agenda goes well beyond performance standards and delves into the sphere of student loan debt and the privatization of public universities.

“Flexibility” and Privatization, Sponsored by Sallie Mae Front Group the Lumina Foundation

Many of the groups exposing ALEC celebrated when the Lumina Foundation dumped ALEC.

But two vital parts of the story were left out.

First, the late-May 2012 timing of this “dumping” is key to understand. Lumina Foundation’s $295,000 grant to ALEC, according to its web site, began in June 2010 and ran through May 31, 2012. The dumping announcement occurred on May 22, a week before the grant’s expiration. So the real question here is: was this a “dumping,” or simply the termination of the grant cycle that Lumina repackaged as a “dumping” for public relations purposes, in an attempt to give the impression that it is socially responsible? Of course, Lumina might well have renewed that grant for another two years had the spotlight not been focused on ALEC.

Second, how much money has the Lumina Foundation given to The Other ALECs  and what exactly is the Lumina Foundation, anyway?

The truth is that the Lumina Foundation has given more money to The Other ALECs, in particular, to NCSL, to push its agenda than it has to ALEC. As we wrote in part one, NCSL has received over $1 million since 2007 from the Lumina Foundation. By contrast, ALEC has received $595,000 since 2008 from Lumina, all according to the Lumina web site’s section on grants.”

So, what exactly is the Lumina Foundation, and why does it matter?

Lumina, recent history has shown, is a main pusher of so-called “flexibility” packages for public universities. “Flexibility” means privatization, with the recent struggle over thefuture of the University of Wisconsin serving as a case study of the type of packageLumina pushes under the guise of its stated mission of “increasing students’ access to and success in postsecondary education.”

The explanation of Lumina’s agenda we offered in part one is instructive:

The funding stream behind Lumina’s existence speaks volumes about the higher education agenda it is pushing. “Lumina Foundation is a conversion foundation created in mid-2000 as USA Group, Inc., the nation’s largest private guarantor and administrator of education loans, sold most of its operating assets to Sallie Mae,” explains Lumina on its web site.

Sallie Mae made nearly $21 billion dollars in student loans in fiscal year 2009, feasting on skyrocketing student tuition fees, which are directly linked to the “flexibility” efforts that the foundation Sallie Mae bankrolls is pushing through NCSL (and ALEC).

In the meantime, scores of students are defaulting on these student loans.

Lumina’s current $442,000 grant to NCSL is not set to expire until June 2013.

ALEC’s Academic Bill of Rights

ALEC is no innocent bystander in this game. Its “Academic Bill of Rights for Public Higher Education Act” model bill, which it ratified internally in spring 2004, serves as the ultimate testament to the organization’s engagement in this arena.

This supposed Bill of Rights bears a strong resemblance to radical-leftist-turned-reactionary-conservative David Horowitz’s Academic Bill of Rights. Perhaps this is no coincidence, given that Horowitz spoke to ALEC on the topic at the organization’s 2003 annual meeting.

Critics assail the Horowitz/ALEC model as an attack on academic freedom.

In her 2010 book, “The Lost Soul of Higher Education: Corporatization, the Assult on Academic Freedom, and the End of the American University,” Ellen Schrecker wrote: “A particularly problematic campaign has been the attempt of the conservative activist David Horowitz to impose his so-called Academic Bill of Rights on the nation’s institutions of higher learning … [A]t its peak in 2005 and 2006, about twenty state legislatures were considering the measure…. “

Little did she know at the time of writing her book that these 20 bills were also ALEC models. It took the ongoing ALEC Exposed project to make that clear.

Energy: Fracking, Ethanol Production and “Clean Coal,” Oh My

Energy, and more specifically, fossil fuels, is the “lubricant” of modern Western civilization, as former Shell North America CEO John Hofmeister put it in a February 2012 address given at University of Wisconsin-Madison.

It is unsurprising, then, given this premise, that fossil fuel corporations (and ethanol corporations) utilize ALEC and The Other ALECs to push their agenda on issues ranging from fracking, ethanol production and so-called “clean coal,” also sometimes known as carbon sequestration.

Fracking Chemical Fluid “Disclosure”

The New York Times and ProPublica attributed a fracking chemical fluid “disclosure” bill to ALEC based on the model bills that had been obtained by Common Cause, butDeSmogBlog subsequently uncovered a similar bill from CSG. The ALEC bill actually has nothing to do with true disclosure because it is purposefully riddled with loopholes.

The Times wrote:

Last December, ALEC adopted model legislation, based on a Texas law, addressing the public disclosure of chemicals in drilling fluids used to extract natural gas through hydraulic fracturing, or fracking. The ALEC legislation, which has since provided the basis for similar bills submitted in five states, has been promoted as a victory for consumers’ right to know about potential drinking water contaminants.

A close reading of the bill, however, reveals loopholes that would allow energy companies to withhold the names of certain fluid contents, for reasons including that they have been deemed trade secrets. Most telling, perhaps, the bill was sponsored within ALEC by ExxonMobil, one of the largest practitioners of fracking – something not explained when ALEC lawmakers introduced their bills back home.

This bill was a CSG model months before it became an ALEC model. DeSmogBlog explained,

Texas HB 3328 became a piece of CSG’s SSL arsenal at its October 2011 National Conference,  which took place in Bellevue, Washington. In other words, this was a CSG model bill roughly two months before it became an ALEC model bill.

…

ExxonMobil and the American Petroleum Institute (API) were both Conference Sponsors at CSG’s 2011 National Conference. ExxonMobil was a Gold Level Sponsor, while API was a Silver Level Sponsor. CSG Director of Membership, Marketing & Media, Kelley Arnold, told DeSmogBlog that CSG does not disclose how much money each sponsorship level is worth.

This CSG/ALEC model bill has passed in Colorado, Pennsylvania, Illinois and Ohio.

CSG also has a model bill on the books promoting a now discredited source of energy, ethanol.

Ethanol Corporate Welfare

During the height of the ethanol production craze,  CSG published a piece of SSL titled “Ethanol Production Incentive” in 2004. It is modeled after a 2003 North Dakota bill, SB 2222.

The bill offers taxpayer bucks to prop up ethanol-producing corporations that would not exist were it not for what Ralph Nader refers to as “corporate welfare.”

What is ethanol anyway? Investigative journalist Jill Richardson explains that it is far from the silver-bullet fuel.

In a February 2011 article for AlterNet, Richardson wrote:

Given America’s enthusiasm for ethanol production, one might assume that ethanol is a miracle fuel, sent from heaven to lead the way to independence from oil…. But sources as diverse as Mother Earth News and Popular Mechanics provide evidence to the contrary.

Corn ethanol provides 1.3 Btu in energy for every 1 Btu consumed in producing and delivering it, according to the U.S. Department of Energy’s National Renewable Energy Laboratory. A paper by SUNY professor Charles Hall defines this measure as EROI, Energy Return on Investment. According to Hall, a sustainable fuel should have an EROI above 5 to 1. Oil falls short of this measure with an estimated EROI of 3 to 1, if the measure accounts for the infrastructure and energy required to extract, refine and transport the end product. But ethanol, with an EROI of 1.3 to 1, falls even shorter. Measured in EROI, natural gas, wind, hydroelectric, and even firewood all rate better than either oil or corn-based ethanol.

If ethanol is such an inefficient fuel, why are U.S. policies so favorable to it? Popular Mechanics chalks it up to money. Specifically, the money that goes to commodity growers who profit from ethanol and the money – and political influence bought with that money – of giant agribusinesses like Archer Daniels Midland.

Beyond North Dakota, ethanol production plant incentive bills have passed in Hawaii, Indiana, Kansas, Kentucky, Montana, Nebraska, Ohio, Oklahoma, South Dakota, and Virginia, for a grand total of 11 states, according to the US Department of Energy’s Alternative Fuels and Advanced Vehicles Data Center.

Carbon Sequestration

The CSG agenda goes above and beyond the actual promotion of the production of dirty energy resources like fracking and ethanol and into the promotion of the burial of carbon into the ground in a process known as carbon sequestration, sometimes also referred to by propagandists as “clean coal.”

CSG’s Carbon Sequestration SSL, published in its 2010 volume, is a copycat of Wyoming’s Chapter 30 of 2008 and “creates a regulatory scheme for geologic CO2 [carbon dioxide] storage,” as stated in the SSL’s preamble. It also published a longer version of this bill in 2011, based on Louisiana Act 517, which, as explained by CSG, “was based on model legislation proposed by the Interstate Oil and Gas Compact Commission.”

The Interstate Oil and Gas Compact Commission “is a multi-state government agency that promotes the conservation and efficient recovery of domestic oil and natural gas resources,” according to its web site. “IOGCC is a leader and a driver of national oil and gas policy.”

Put more bluntly: this model bill was written by the oil and gas industry, for the oil and gas industry.

One of the most vehement critics of carbon sequestration is Peter Montague of theEnvironmental Research Foundation. For myriad reasons, Montague explains, burying a toxic waste into the ground is ecologically hazardous.

In a piece he wrote in February 2012 for AlterNet, Montague made the case against carbon sequestration:

Burying CO2 in the ground is sometimes called “clean coal” but it’s much bigger than just coal. It means capturing CO2 gas from industrial sources like power plants, cement kilns, oil refineries, and garbage incinerators, compressing it into a liquid, and pumping it a mile or more below ground, hoping it will stay there forever. It’s a gigantic experiment, with the future of civilization in the balance.

…

As with fracking, CCS [carbon capture and storage] has created a chasm of suspicion and mistrust within the environmental movement. The Big Green environmentalists with offices in Washington, D.C. favor fracking to produce natural gas, so long as it’s subject to “the best regulations,” whatever that means. Unfortunately, no matter how strict the regulations may be, burning natural gas inevitably produces CO2, so Big Green also favors burying CO2 in the ground. Big Green assumes we face a fossil-fueled future and therefore we need CCS. Unfortunately, Big Green’s support of CCS becomes a self-fulfilling prophesy, helping create a fossil-fueled future. The fossil corporations are already using the promise of CCS to lobby powerfully against investments in efficiency or renewables, locking us into a fossil future.

On the whole, Montague believes this model bill is a pure corporate giveaway.

“The proposed law gives private firms the right of eminent domain to seize private property for purposes of burying hazardous carbon dioxide wastes,” he told Truthout. “Then it sticks taxpayers with liability for any problems that may occur in the future. Private operators get the profits and the public ends up owning a soggy bag of hazardous waste CO2 that has to be monitored for hundreds of years.”

According to NCSL, the model, or versions close to it, have also passed in states ranging from Illinois, Kansas, Montana, North Dakota, Oklahoma, Pennsylvania and Texas.

All the Trend Lines Are Bad – a Structural Reality

As with ALEC’s agenda, the agenda of CSG – one of the key Other ALECs – is broad in scope and wide-reaching in influence, leaving few policy spheres untouched.

Robert Weissman, president of Public Citizen and editor of Multinational Monitor, doesn’t mince words when it comes to what this means for an ever-waning democracy in the United States.

“All the trend lines are bad. I think on one hand, state and local elections are much more open to grassroots insurgencies,” he told Truthout. “On the other hand, more pervasively, [statehouses are] less monitored; they’re less covered by the media and they’re less tracked by advocacy groups. A structural reality is that state legislative staffs are tiny and corporations are capitalizing on that, including groups like CSG and ALEC.”

Copyright, Truthout. May not be reprinted without permission.

Sarah Blaskey is a freelance journalist based in Madison, Wisconsin, and a former volunteer at the WORT Community Radio Station in Madison.