Because we have all the metaphorical snakes we can kill right here in Louisiana, it’s rare that we dwell on events in other states unless there is a direct link to developments in the Louisiana political arena.
But a request for public records in Texas pertaining to the American Legislative Exchange Council (ALEC) under that state’s Freedom of Information Act raised a red flag when a favorite but questionable phrase of Louisiana officials was invoked by a Texas legislator in an effort to prevent the release of records.
For the record, we do not believe it a coincidence that the “deliberative process” ploy, so popular with Gov. Bobby Jindal and his minions reared its ugly head in Texas over the issue of whether or not ALEC records are public.
It is our opinion, impossible to prove because of the veil of secrecy thrown over this organization in an effort to conceal its agenda from public scrutiny, that Jindal did not originate the deliberative process maneuver to protect public records from becoming just that—public.
But he certainly knows how to use—perhaps abuse is a better word here—the exception that he slipped into a law that he proudly points to in his national travels as the “gold standard” of transparency that he rammed through the legislature in 2009.
While that 2009 law requires elected and appointed officials to disclose their personal finances, it did little to open up the records of the governor’s office to public examination.
Now, the Freedom of Information Foundation of Texas (FOIFT) has filed a brief with the Texas Attorney General in support of a request for records by the Center for Media and Democracy (CMD).
That request challenges ALEC’s efforts to declare its communications immune from state public records law—even communications with Texas elected officials.
FOIFT’s brief, filed late last month, supports CMD’s position and raises additional arguments countering claims by Rep. Stephanie Klick that the lobbying organizations communications with lawmakers are not subject to disclosure.
Texas was the first state in which ALEC made a formal request of the Attorney General that its records should be exempt from Texas sunshine-in-government laws. ALEC has even begun stamping documents with a disclaimer that says materials such as meeting agendas and model legislation are not subject to any state’s open records laws.
FOIFT counters that assertion by saying the arguments by Klick and ALEC are “mutually inconsistent.”
“Rep. Klick invokes the deliberative process privilege, which involves policy discussions internal to a governmental body,” not between a legislator and a third-party special interest group funded by lobbyists trying to influence legislation,” the brief says. At the same time, it says, “ALEC invokes its members’ First Amendment right of association, which involves its internal discussions and membership.”
Accordingly, it says, because ALEC is communication with Klick in her official capacity as a state representative, the requested documents should be officials records to which the public has a First Amendment right of access.
All of which raises the question of which came first the chicken (Jindal) or the egg (ALEC) insofar as the origination of deliberative process?
Our opinion, for what it’s worth, is that Jindal devised that ploy straight from ALEC’s playbook—just as have so many of his policies, from privatization of prisons and hospitals to school vouchers and charters to pension, healthcare and workers’ compensation reform to massive layoffs of state employees.
Jindal and his legislative floor leaders are in lock step with ALEC and that’s a sad commentary on those officials’ inability to think and act for themselves. Their every move is dictated by ALEC, which writes “model legislation” for its members to introduce in state legislators and assemblies back home.
Sometimes, lawmakers even forget to change key wording in their bills, exposing their efforts for what they are—shams, sacrifices offered up at the altar of profiteering enterprise either by puppets or co-conspirators.
It’s no wonder that ALEC wants to protect its records at all costs.
The affair in Texas is reminiscent of our own experience with Rep. Joe Harrison (R-Gray) in July of 2012.
Harrison, the State Chairman of ALEC, sent out a letter on state letterhead soliciting contributions of $1,000 each from an unknown number of recipients of his form letter to finance the travel of Louisiana legislative ALEC members to an ALEC conference in Salt Lake City set for July 25-28.
The letter opened by saying, “As State Chair and National Board Member of the American Legislative Exchange Council (ALEC), I would like to solicit your financial support to our ALEC Louisiana Scholarship Fund.”
Not college scholarships, mind you, but to support “over thirty Louisiana Legislators serving on ALEC Task Forces.” Contributions, Harrison said, “will allow the opportunity (for legislators) to attend conferences funded by the ALEC Scholarship Fund.
“The conferences are packed with educational speakers and presenters, and gives (sic) the legislators a chance to interact with legislators from other states, including forums on Medicaid reform, sub-prime lending, environmental education, pharmaceutical litigation, the crisis in state spending, global warming and financial services and information exchange. All of these issues are import (sic) to the entire lobbying community.
“I, along with other members of the Louisiana Legislature, greatly appreciate your contribution to the scholarship fund. Your $1,000 check made payable to the ALEC Louisiana Scholarship Fund can be sent directly to me at 5058 West Main Street, Houma, Louisiana 70360.
LouisianaVoice submitted a public records request to Harrison requesting, since the contribution solicitation was written on Louisiana House of Representatives letterhead, that Harrison provide the identities of every person to whom the solicitation was sent.
Harrison never responded to the request but House Clerk Alfred “Butch” Speer jumped into the fray, responding, “I have looked further into your records (omitting the word “public” from our request). Rep Harrison sent that one letter to a single recipient,” he said, overlooking the fact that it was a form letter that opened with “Dear Friend.” Not a very personal way for a letter to be sent to a single recipient.
Also unexplained by Speer was how a single $1,000 contribution might cover the travel expenses of “over thirty” legislators to attend the conference.
Speer, ignoring that the letter was printed on state letterhead, said, “The origin of a document is not the determining factor as to its nature as a public record. Whether the letter was or was not composed on state letterhead…does not, per force, create a public record.
“What Rep. Harrison was attempting is of no moment unless he was attempting some business of the House,” he said.
Speer again apparently ignored the fact that the House and Senate routinely pay per diem, travel and lodging for lawmakers to attend ALEC conference. In fact, between 2008 and 2011, the House and Senate combined to pay 34 current and former members more than $70,000 for attending ALEC functions in New Orleans, San Diego, Washington, C.C., Phoenix, Atlanta, Chicago, Dallas and Austin.
If those ALEC trips were not for state business, why in hell were the House and Senate shelling out that money for legislators’ expenses and per diem?
Mr. Speer’s reasons for protecting the names of the recipients of that letter was, to say the lease, quite disingenuous and his effort to protect that information goes against the grain of everything for which a public servant is sworn to uphold, protect and serve.
What’s more, his arguments don’t even come close to accurately defining what is and what is not a public record. We don’t claim to be attorneys at LouisianaVoice, but we can read the public records act.
For Mr. Speer’s erudition, it can be found in LA. R.S. 44:1-41 and Article XII, Section 3 of the Louisiana Constitution.