WHO’S WRITING YOUR LAWS?
NOT THE PERSON YOU ELECTED
“This work proves what many people have suspected, which is just how much of the democratic process has been outsourced to special interests.”
Lisa Graves Co-director of Documented Investigations, which investigates corporate manipulation of public policy
Each year, state lawmakers across the U.S. introduce thousands of bills dreamed up and written by corporations, industry groups and think tanks.
Disguised as the work of lawmakers, these “model” bills get copied in one state Capitol after another, quietly advancing the agenda of the people who write them.
A two-year investigation by USA TODAY, The Arizona Republic and the Center for Public Integrity reveals for the first time the extent to which special interests have infiltrated state legislatures using model legislation.
USA TODAY and The Arizona Republic examined nearly 1 million bills using a computer algorithm developed to detect similarities in language. That search – powered by the equivalent of 150 computers that ran nonstop for months – found that at least 10,000 bills almost entirely copied from models were introduced nationwide in the past eight years. More than 2,100 were signed into law.
The phenomenon of copycat legislation is far larger. In a separate analysis, the Center for Public Integrity identified tens of thousands of bills with identical phrases, then traced the origins of that language in dozens of those bills across the country.
The results reveal that copycat bills amount to the nation’s largest, unreported special-interest campaign, driving agendas in every statehouse and touching nearly every area of public policy.
Model bills have made it harder for injured consumers to sue corporations. They’ve called for taxes on sugar-laden drinks. They’ve limited access to abortion and restricted the rights of protesters.
They have become so intertwined with the lawmaking process that the nation’s top sponsor of copycat legislation, a member of the Pennsylvania Assembly, claimed to have signed on to 72 such bills without knowing or questioning their origin.
For lawmakers, copying model legislation is an easy way to get fully formed bills to put their names on, while building relationships with lobbyists and other potential campaign donors.
For special interests seeking to stay under the radar, model legislation also offers distinct advantages. Copycat bills don’t appear on expense reports or campaign finance forms. They don’t require someone to register as a lobbyist or sign in at committee hearings. But once injected into the lawmaking process, they can go viral, spreading state to state, executing an agenda to the letter.
The investigation found:
❚ Models are drafted with deceptive titles and descriptions to disguise their true intent. The Asbestos Transparency Act didn’t help people exposed to asbestos. It was written by corporations that wanted to make it harder for victims to recoup money. The “HOPE Act,” introduced in nine states, was written by a conservative advocacy group to make it more difficult for people to get food stamps.
❚ Special interests sometimes work to create the illusion of expert endorsements, public consensus or grassroots support. One man testified as an expert in 13 states to support a bill that makes it more difficult to sue for asbestos exposure. In some states, lawmakers weren’t told he was a member of the organization that wrote the model legislation on behalf of the asbestos industry, the American Legislative Exchange Council.
❚ Copied bills have been used to override the will of local voters and their elected leaders. Cities and counties have raised their minimum wage, banned plastics bags and destroyed seized guns, only to have industry groups that oppose such measures make them illegal with model bills passed in state legislatures. Among them: Airbnb has supported the conservative Goldwater Institute, which pushed model bills to strike down local laws limiting short-term rentals in residential neighborhoods in four states.
❚ Industry groups have had extraordinary success pushing copycat bills that benefit themselves. More than 4,000 such measures were introduced during the period analyzed by USA TODAY and The Arizona Republic. One that passed in Wisconsin limited painand-suffering compensation for injured nursing-home residents, restricting payouts to lost wages, which the elderly residents don’t have.
“This work proves what many people have suspected, which is just how much of the democratic process has been outsourced to special interests,” said Lisa Graves, co-director of Documented Investigations, which investigates corporate manipulation of public policy. “It is both astonishing and disappointing to see how widespread ... it is. Good lord, it’s an amazing thing to see.”
The influence of model legislation is undoubtedly larger than the 10,000 copied bills identified by USA TODAY and The Arizona Republic.
Because the investigation relied on matching identical text, it flagged instances when legislators copied model legislation nearly verbatim but not when they adapted an idea without using the same language.
Sherri Greenberg, who spent 10 years in the Texas Legislature and is now the Max Sherman Chair in State and Local Government at the University of TexasAustin, said bills used to spring from lawmakers’ experiences, constituents or lobbyists representing long-established industries. Model legislation has flourished as gridlock in Congress forced special-interest groups to look to the states to get things done, she said.
Not all model legislation is driven by special interests or designed to make someone money. Some models were written to require sex offenders to register with law enforcement, and others have made it easier for members of the military to vote or increased penalties for human trafficking.
Charles Siler, a former external relations manager for the Goldwater Institute, which has pushed copycat bills nationwide, said such bills are a fast way to spread ideas because with little modification, lawmakers can adapt them to their state.
“It’s not inherently bad, one way or the other,” said Siler, who now works for a political action committee. “It depends on the idea and the people pushing it. Definitely people use model legislation to push bad ideas around.”
Allison Anderman, managing attorney at the pro-gun control Giffords Law Center to Prevent Gun Violence, said model bills are simply how the system works now.
“This is how all laws are written,” she said. “You’d be hard-pressed to find a law where a legislator sits in a chamber until a light bulb goes off with a new policy.”
Misleading language
The Asbestos Transparency Act sounds like the kind of boring, goodgovernment policy voters expect their representatives to hammer out on their behalf to safeguard public health.
Better transparency was one reason Colorado state Sen. Jerry Sonnenberg said he introduced the bill in 2017, and again last year, at the urging of a tort reform group called the Colorado Civil Justice League and backed by insurance companies, including Nationwide Insurance.
“Whenever you add transparency to the mix, it helps all consumers,” said Sonnenberg, a Republican.
But the bill didn’t require companies to disclose what products had asbestos or help people exposed to the cancercausing mineral.
It, in effect, cast corporations as victims of litigation filed by sick people. The model bill requires people dying of the asbestos-triggered disease mesothelioma to seek money from an asbestos trust, set up to compensate victims, before they can sue a company whose product might have caused their cancer. That process can take up to a year.
Many mesothelioma victims die within a year of their diagnosis. Their families can still sue on their behalf, but for far less money.
“I can tell you for a fact that families don’t have time for all these hoops they want you to jump through,” said Chris Winokur, whose husband, Bob, was diagnosed with mesothelioma in 2015 and died nine months later. “They’re trying to make it more difficult to sue.”
Bob Winokur, who worked for the U.S. Forest Service and served as mayor of Fort Collins, never pinpointed where he came in contact with asbestos. And he never filed a claim to help pay his medical bills.
The disease progressed too rapidly to allow it, even without the additional requirements proposed by the model bill, said Chris Winokur.
The model legislation was the work of corporations seeking to limit their exposure to billions of dollars in litigation associated with asbestos. Insurance companies Nationwide, AIG, Travelers, Hartford and CNA Financial Corp. together hold more than half the nation’s asbestos claim exposure totaling over $870 million.
USA TODAY and The Arizona Republic found the Asbestos Transparency Act, a product of the American Legislative Exchange Council (ALEC), an industry-supported model bill factory, has been introduced in at least 17 states since 2012. It became law in 11 states.
Sonnenberg, the lawmaker who introduced it in Colorado, said he didn’t write the bill and relied on “my experts” to explain it during a February 2017 hearing.
One of those experts was Mark Behrens, who logs thousands of miles a year testifying before lawmakers about ALEC’s model asbestos legislation. He has done so in at least 13 states, where he was billed as an objective authority.
But Behrens is an attorney with Shook, Hardy and Bacon, which represents companies in complex litigation. He also is co-chairman of ALEC’s Civil Justice Task Force and is paid by the U.S. Chamber’s Institute for Legal Reform, an arm of the nation’s largest business lobby, which has the stated goal of reducing litigation.
Sonnenberg told USA TODAY he didn’t know Behrens worked for the Chamber of Commerce when he called him to testify. “I just knew they were experts and they indeed understood the legal issues and process much better than I,” he wrote in an email.
USA TODAY found that more than 4,000 copycat bills benefiting industry were introduced nationwide during the eight years it reviewed.
Many were couched in unremarkable or technical language that obscured their influence.
Bans on raising the local minimum wage were dubbed “uniform minimum wage” laws. Changes to civil court rules to shield companies from lawsuits were described as “congruity” or reforms to make laws consistent. Repealing business regulations was disguised under the term “rescission.”
“No citizens are saying, ‘Hey, can you make it harder to sue if ... low-paid (nursing home) orderlies happened to kill or injure my parents?’ ” Graves said. “That’s not a thing citizens are clamoring for. But you know who is? The nursing home industry, and big business in general.”
‘Have to come from somewhere’
A moderate Republican from the Philadelphia suburbs shows how copycat bills in some states set the legislative agenda.
Rep. Thomas Murt has sponsored more model legislation than any other state lawmaker in the nation, according to USA TODAY’s database.
Murt, whose biggest campaign donors include the Pennsylvania Republican Party and labor unions, said he was stunned to learn that he was listed as a sponsor on 72 bills substantially copied from model legislation from 2010 to late 2018.
Pennsylvania House members solicit co-sponsors by circulating circulate short memos summarizing a bill without including its actual language or who wrote it. The Pennsylvania House of Representatives makes it simple for legislators to solicit co-sponsors. They circulate brief memos summarizing the bill but don’t include its actual language or identify who wrote it.
“I had no way of knowing unless it’s put in the … memo,” Murt said of the bills he helped sponsor.
Murt’s situation highlights how critical bill titles and summaries are – especially when it comes to copycat legislation – because lawmakers, even sponsors, often don’t read bills.
Had Murt probed further, he would have seen the bills he signed onto came from ALEC, its liberal counterpart ALICE, the State Innovation Exchange, the Council of State Governments, the Goldwater Institute and other groups that specialize in writing copycat bills.
He said he didn’t remember all 72 bills, 13 of which became law. They dealt with cities’ ability to take action against blighted properties, prohibitions on businesses banning guns in employees’ vehicles, and a call for the U.S. president to be elected by popular vote, among many others.
Murt said he would reconsider his support for two of the bills that were copied from ALEC, after learning more about their impact. One was a call for a constitutional convention to curb federal spending, backed by the controversial Koch brothers conservative political network. The other was a bill protecting Crown Cork & Seal from asbestos liability.
“I would be suspect of such a proposal,” Murt said of the constitutional con
vention model. “But bear in mind that when that co-sponsor memo was circulated, I’m sure it never mentioned the Koch brothers, because for some people that would have been a showstopper.”
USA TODAY interviewed more than 50 sponsors of model legislation nationwide. Half said they knew they had sponsored model legislation. But 20 legislators said they didn’t know the source of their bill or claimed they wrote at least part of the bill.
Five insisted that the bill was their own work, even though the wording of each bill we asked about included multiple passages that matched model legislation nearly verbatim. Almost all of the sponsors defended the practice of copying model legislation or had no opinion of it.
“The ideas have to come from somewhere,” said Cliff Bentz, a Republican state senator in Oregon.
Solution in search of a problem
“Countless American lives will be saved … I don’t want to say thousands because I think it’s going to be much more – hundreds of thousands,” President Donald Trump said at a signing ceremony for the national Right to Try bill in May 2018. “It is such a great name. From the first day I loved it. It’s so perfect: Right. To. Try.”
With the stroke of a pen, Trump made a bill that had circulated in statehouses for four years the most successful copycat bill in history. Not only did it pass in 41 states, but it also had conquered Congress.
The version passed by Congress allows terminally ill patients a right to try experimental medications not been fully approved by the Food and Drug Administration.
The bill’s title left the public with the impression it was spurred by a groundswell of patients demanding treatment. Instead, it was a focus-group-tested name, coined by a consultant to a forprofit company.
That corporation, Cancer Treatment Centers of America, a chain focused on alternative cancer treatments, wanted access to experimental drugs.
Right to Try illustrates another finding of USA TODAY’s investigation: Some copycat bills amount to little more than marketing and posturing, with organizations behind them offering a solution to a perceived problem with little or no measurable impact.
The point is seemingly to score political points, draw attention to the organization behind the model, and raise money off the effort.
Former Goldwater President Darcy Olsen parlayed this campaign into the book “Right to Try.” In it, she said Cancer Treatment Centers of America approached Goldwater for help addressing a “national medical emergency”: the government blocking terminally ill patients from receiving potential lifesaving treatments.
When asked, Goldwater could not produce any of those patients.
Alison Bateman-House, an assistant professor of medical ethics at New York University’s Langone Health, said Right to Try is “an effort to address a problem that did not actually exist” because patients have been able to access experimental drugs since the 1970s.
“The Goldwater Institute was taking advantage of a very heart-rending and sympathetic issue to push for their pet policy, which is basically to roll back regulations,” Bateman-House said. “They did pick a winner of a name . ... Unfortunately, it’s a lie.”
The will of the people?
For Susan Edwards, it seemed like a godsend when Arizona lawmakers introduced a bill to create a new kind of school voucher for students with disabilities.
With the extra money – funded by dollars taken from a recipient’s local district school – the airline pilot and mother of two children on the autism spectrum could send her kids to a private school where they would receive specialized attention they wouldn’t get elsewhere.
With a sympathetic group of students as the face of the legislation, Democrats and Republicans rallied behind the 2011 bill, which borrowed language from the Goldwater Institute, ALEC and American Federation for Children, the pro-school-choice group founded by Education Secretary Betsy DeVos.
Edwards’ opinion of the program, however, would change drastically as legislators introduced bill after bill to expand the program to more students, culminating in lawmakers approving it for all students.
None of those bills guaranteed that Edwards’ sons could keep their vouchers as more students were added. She didn’t know at the time that lawmakers were drawing their ideas from ALEC and other groups’ model bills.
Edwards said she realized in retrospect that students with disabilities were used as a Trojan horse to put on the legislative agenda a fringe idea that was part of a much bigger campaign. In the years that followed, 19 other state legislatures debated 93 nearly identical proposals. They became law in Florida, Mississippi, Nevada, North Carolina and Tennessee.
“Every single, little expansion, if you look at who’s behind it, it is the people that want to get that door kicked open for private religious education,” Edwards said. “All we (families with disabled students) are was the way for them to crack open the door.”
On Election Day 2018, Arizona rejected universal vouchers by a 65-35 margin.
But that was only the most recent example of model legislation that didn’t reflect the will of voters, USA TODAY found. Model-bill factories have increasingly proposed what are known as “preemption” bills, which prevent counties, cities and towns from enacting certain laws favored by their constituents. Preemption bills, in effect, allow state legislators to dictate to city councils and county governing boards what they can and cannot do within their jurisdiction.
USA TODAY’s algorithm found more than 100 such bills had been introduced on an expanding array of topics.
Kansas stopped local efforts to require restaurants to list calories on their menus. Arizona and New Hampshire prevented regulations on home rentals. Airbnb has lobbied against home-sharing restrictions, often with the Goldwater Institute’s assistance. Others prevented local governments from raising the minimum wage, banning plastic grocery bags and destroying guns.
Said Dawn Penich-Thacker, who helped overturn Arizona’s universal vouchers with a public vote: “There’s real ... hypocrisy in many of these socalled conservative legislators trying to rip away local control when they preached for years that a government that’s closest to you ... is most responsive to you.”