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Home Your Right to Know columns September: Lawmakers exploit loophole to hide ALEC ties

September: Lawmakers exploit loophole to hide ALEC ties

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Brendan Fischer

Wisconsin state legislators are routinely deleting emails concerning their involvement with the controversial American Legislative Exchange Council (ALEC), exploiting a loophole that exempts the Legislature from records retention rules that apply to all other state and local government officials.

For more than a year, we at the Center for Media and Democracy, a nonpartisan watchdog and reporting group, have been tracking ALEC, which lets private corporations and think tanks vote with state legislators to approve “model” legislation for introduction in statehouses across the country.

ALEC’s influence on Wisconsin politics is profound. At least 49 current Wisconsin legislators are known ALEC members, and at least 32 bills or budget provisions introduced in Wisconsin’s 2011-2012 session include language from ALEC.

But some legislators would prefer that Wisconsinites not see documents revealing the extent to which they are working hand-in-hand with ALEC.

Last December, the Center submitted requests under the state’s open records law to ALEC member legislators seeking emails and other records related to the group. Their responses revealed that legislators are either not complying with the records law or are actively deleting ALEC-related records.

Rep. Scott Suder, R-Abbotsford, a longtime ALEC member and the group's state chair for Wisconsin, denied having a single ALEC-related record in his entire office or email system. But records released by other legislators show that Suder was a recipient of emails sent from ALEC to members of the Wisconsin Legislature.

Sen. Scott Fitzgerald, R-Juneau, issued this reply to a more recent records request from Common Cause: “If we did receive materials (from ALEC), either electronically or via mail, those materials were discarded upon receipt.”

Deleting public records may appear deceptive, but under Wisconsin law, it is permissible. The Legislature has specifically exempted itself from the requirement that public officials preserve official records. That means lawmakers — but not any other state or local official — can destroy emails that might be embarrassing or incriminating, as long as there is not a pending records request.

Sen. Jim Holperin, D-Conover, introduced SB 428 last fall to close this loophole and make legislators subject to the same retention rules that apply to all other public servants. But despite having some bipartisan support, the bill died in committee.

What do Wisconsin legislators have to hide?

Information that has been released through open records requests show corporations making earmarked donations to fund flights and hotel rooms for Wisconsin legislators who attend ALEC meetings. The Center for Media and Democracy believes this may violate state ethics laws and has filed a complaint with the Government Accountability Board.

Evidence uncovered through other requests prompted a former IRS official, Marcus Owens, to file a complaint with the IRS charging that ALEC has violated its charitable status.

Perhaps because “sunlight is the best disinfectant,” ALEC is apparently trying to sidestep transparency laws. In recent months, it has stopped sending legislators proposed model bills and meeting agendas via email. ALEC is now sending its members a link, which expires within 72 hours, to an Internet drop box where they can access the relevant documents, potentially concealing these documents from open records requests.

Wisconsin’s open records law unambiguously states “that a representative government is dependent upon an informed electorate” and that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

These efforts to destroy and disguise records about ALEC’s lobbying, gifts and influence defy our state’s proud history of clean and open government.

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, a nonprofit group dedicated to open government. Brendan Fischer is an attorney and writer at the Madison-based Center for Media and Democracy, publishers of ALECexposed.org and PRwatch.org.