By Mike Appleton, Guest Blogger
“Be what you would seem to be-or, if you’d like it put more simply-Never imagine yourself not to be otherwise than what it might appear to others that what you were or might have been was not otherwise than what you had been would have appeared to them to be otherwise.”
-Lewis Carroll, Alice in Wonderland
The late Paul Weyrich is generally regarded as the principal architect of the new conservative coalition that emerged with the ascendancy of Ronald Reagan. He was a co-founder of the Heritage Foundation. He even created the phrase “moral majority” for Pat Robertson. But his most important creation was the American Legislative Exchange Council (ALEC) in 1973. In the course of 30 years that body has become the most powerful force in state legislative bodies throughout the country.
Weyrich was not a fan of voting rights. “I don’t want everybody to vote,” he said in 1980. “Elections are not won by a majority of the people. They never have from the beginning of our country and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.” Weyrich understood that voters are problematic for two reasons. First, they are fickle and unpredictable. Second, they cannot be held accountable for their decisions. In short, they cannot be controlled, making democracy an uncertain endeavor.
But Weyrich also understood that lobbying is not an effective antidote to an independent electorate. It is expensive and subject to restrictions and regulations that vary from state to state. ALEC operates in a manner that enables it to surmount those problems. Powerful corporate interests provide the funding necessary to research and draft model bills serving their interests. The approximately 2,000 state legislator members of ALEC sponsor those model bills in their respective states. And the electorate? Well, anyone is free to join and have his or her voice heard by paying an annual membership fee ranging from $7,000.00 to $25,000.00.
As you will see, ALEC’s ability to get its way in spite of the voting public is indeed a wonder to behold.
Wisconsin has a statute authorizing what is known as “direct legislation.” The statute allows voters in a municipality to draft a specific ordinance and submit it to local government to either adopt without changes or place on a referendum ballot. The submission must be accompanied by a petition containing the signatures of qualified voters equal to or exceeding 15% of the votes cast in the last gubernatorial election.
In 2008 a coalition of groups in the City of Milwaukee proposed an ordinance which would require employers to provide paid sick leave to employees under prescribed circumstances. The Milwaukee Common Council considered the ordinance and decided to place it on the ballot for the November 4, 2008 general election. The ordinance was overwhelmingly approved by 68.64% of the voters and became law on November 12, 2008.
Business interests were outraged, and the Metropolitan Milwaukee Association of Commerce (“MMAC”) promptly filed suit in circuit court to challenge the ordinance on various constitutional and statutory grounds. The MMAC successfully secured a preliminary injunction and, on June 12, 2009, a summary final judgment finding the ordinance unconstitutional and permanently enjoining its enforcement.
The City of Milwaukee declined to appeal the judgment, but the Milwaukee chapter of the 9to5 National Association of Working Women, one of the proponents of the ordinance, was able to pursue the appeal as an intervening defendant. The Wisconsin Court of Appeals initially certified the case to the Wisconsin Supreme Court for determination, but that court split 3-3 on whether to reverse, and sent the case back to the court of appeals to rule on the merits. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 789 N.W.2d 734 (Wisc. 2010). On March 21, 2011, the court issued a 50-page opinion upholding the constitutionality of the ordinance and remanding the case to the circuit court with instructions to enter a summary judgment vacating the injunction and reinstating the ordinance. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 798 N.W2d 287 (Wisc. App. 2011).
But the sweetness of victory can often be a fleeting pleasure. While the appeal was pending, attorneys for MMAC were not only writing briefs; they were also drafting proposed legislation intended not only to eliminate the Milwaukee ordinance, but to insure that this experiment in home rule would not be repeated elsewhere in the state. Their efforts produced what would become known as Senate Bill 23. The bill was introduced on February 23, 2011, almost a month before the appellate decision. It was sponsored by Sens. Leah Vukmir, Mary Lazich, Glenn Grothman and Alberta Darling. Sen. Vukmir served as ALEC’s Health & Human Services Task Force Chairperson and received the ALEC Legislator of the Year Award in 2009. The other senate sponsors are all members of ALEC.
Senate Bill 23 begins with a legislative determination that the “provision of family and medical leave that is uniform throughout the state is a matter of statewide concern” and that the enactment of local ordinances mandating sick leave, paid or unpaid, “would be logically inconsistent” with the need for uniformity. The bill concludes with a prohibition against the adoption by any “city, village, town, or county” of an ordinance requiring the provision of sick leave, paid or unpaid, by any employer. The Wisconsin legislature moved quickly and Gov. Walker signed the bill into law as Wisconsin Act 16 on May 5, 2011. By the time the ordinance appeal was remanded to the Milwaukee County circuit court, the new preemption statute was already in effect. Circuit Judge Thomas Cooper said, “I don’t feel real good about how this happened politically,” but finding further action on the ordinance now moot, he concluded, “It’s over.”
The Bureau of Labor Statistics estimates that 40 million American workers, roughly 40% of the workforce, lack the ability to take sick days for any reason without losing pay, or possibly their jobs. Among restaurant workers 79% are in this position. Evidence submitted in favor of the Milwaukee ordinance established that 47% of the private sector workforce in that city lack paid sick leave. They still do. And the almost 70% of the Milwaukee electorate who believed they could do something about it now understand that Paul Weyrich was right. Some elections are not won by a majority of the people.
Sources: American Legislative Exchange Council (www.alec.org); ALEC: The Voice of Corporate Special Interests In State Legislatures,” People for the American Way (www.PFAW.org); “ALEC Exposed: Wisconsin, the Hijacking of a State,” Center for Media and Democracy, 2012; “Revealed: Full List of ALEC’s Corporate Members,” Think Progress, May 4, 2012; Georgia Pabst, “Judge says city’s sick days ordinance is ‘over'”, Milwaukee Journal Sentinel, July 28, 2011; “Walker signs bill to kill Milwaukee sick leave law,” BizTimesMedia, May 5, 2011; “Ruling will not end sick leave fight,” Milwaukee-The Business Journal, March 24, 2011; Patricia Sullivan, “A Father of Modern Conservative Movement,” Washington Post, December 19, 2008.