A coalition of rights groups filed suit Wednesday, accusing state lawmakers of illegally meeting behind closed doors with special interests in a way that violates Arizona’s Open Meeting Law.
Attorneys for the organizations charge that there is a quorum of at least five legislative committees attending the annual conference of the American Legislative Exchange Council. That organization, funded largely by corporate interests, serves as a clearinghouse of sorts for proposed changes in state laws across the nation, changes that can wind up being formally adopted by the Arizona Legislature.
An ALEC representative called the suit a publicity stunt.
The lawsuit contends this process shuts the public out of the process at the earliest stages of amendments to state law. More to the point, the group argues, the fact that there is a quorum of a committee present means the first action on the legislation effectively occurs behind closed doors.
“When lawmakers are going to be debating, deliberating on, deciding upon the policies that impact every Arizonan, all Arizonans have a right to be able to view and participate in that process,” said Heather Hamel, an attorney with The People’s Law Firm, which is representing those who filed suit. “These proceedings completely undermine that.”
The lawsuit names only the Arizona Legislature as a defendant and not any of the individual lawmakers who are attending this conference or have gone to prior ones. Nor does it specifically show who attended any of the ALEC sessions or even what was discussed.
But attorney Aya Saed of the Center for Constitutional Rights, which also is representing the plaintiffs, said that isn’t necessary.
She said Arizona law is built around the premise that all meetings are open to the public. Exceptions exist to allow for executive sessions for only for certain specified purposes, such as getting advice from an attorney and personnel matters.
What is happening at ALEC meetings, Saed said, are unannounced executive sessions of several legislative committees, complete with a quorum.
She said those closed-door sessions give challengers no way of knowing exactly what went on, creating what the lawsuit calls a “circular impossibility” for someone to say the meeting is illegal. And that, Saed said, changes everything.
“We’re essentially shifting the burden of proof and demanding that they tell us who it is and what it is they’re discussing,” she explained, saying it is now up to lawmakers to prove they are doing nothing illegal behind closed doors.
Andrew Wilder, spokesman for House Republicans, called the action “a politically driven and legally meritless lawsuit brought by far-left activists.” He said lawmakers from both parties attend a wide variety of policy conferences. There was no response from Senate Republicans.
Bill Meierling, chief marketing officer for ALEC, called the press conference and lawsuit “a PR stunt.”
He said ALEC meetings are open to the media for free, and to anyone else who wants to pay the registration fee. General sessions are streamed live, though the individual committee meetings are not.
But the bottom line, Meierling said, is that ALEC sees itself as a forum to educate lawmakers.
“What we are is an academic institution that brings people together on an ongoing basis to engage in dialogue on issues of importance,” he said.
“Our legislators are coming here to learn,” Meierling said, adding that can occur when lawmakers from various states can get together and compare notes of what works and what does not.
None of this, he said, runs afoul of Arizona’s Open Meeting Law.
“They’re not crafting legislation and they’re not looking at legislation,” Meierling said. “What they’re doing is discussing broad public policy.”
Meierling does not dispute that ALEC is funded by business interests whose lobbyists and executives attend the sessions and are seeking a role in the education of lawmakers. But he said there is nothing exclusive about ALEC membership, saying any interest is free to join the dues-paying organization.
The challengers, however, say what emerges from these meetings is “model legislation” that Arizona lawmakers who attend the ALEC conferences can bring back to the Capitol and essentially cut-and-paste into legislative proposals.
The issue is more than academic for some of the organizations that are asking the court to declare that it is illegal for any quorum of any committee to attend ALEC meetings without complying with the Open Meeting Law.
Sandra Castro, an activist with the Puente Human Rights Movement, said that SB1070, the historic 2010 Arizona law aimed at illegal immigration, came directly from a draft crafted at an ALEC meeting.
Parts of that law have since been struck down by federal courts. But some provisions remain intact, including a requirement for police, when reasonable, to check the immigration status of those they have stopped for any other reason.
Meierling said that isn’t correct, insisting SB1070 was already adopted in Arizona before it became part of the ALEC agenda as a model for other states. Anyway, he said, ALEC no longer is involved in immigration issues.
Jamil Naser of the Arizona Palestine Solidarity Alliance complained about ALEC’s role in crafting what became a 2016 state law that sought to deny public contracts to firms that refused to avow they would not boycott Israel or companies that do business there. That law was later struck down by a federal judge, though legislators subsequently adopted a slightly different version that has yet to be challenged.
Other complaints centered around what they said is ALEC-inspired legislation to increase criminal penalties and build more private prisons.
In the past, conservative legislators, many of whom have attended ALEC conferences, contended that singling out ALEC as a source for “model legislation” is selective. They argued that progressive groups also churn out model legislation that then gets introduced by their allies in legislatures across the country.
Senate President Karen Fann made this point recently on Twitter in response to a post about shutting ALEC down.
“Why is it no one ever talks about the Democrats Progressive States Network aka State Innovation Exchange funded by Soros, moveon.org, National Educations (Association), open society foundation and unions?” she posted on Twitter.
The lawsuit seeks more than a court order barring a quorum of any committee from attending future ALEC conferences without complying with the Open Meeting Law.
Plaintiffs also want a judge to declare that any documents presented to lawmakers during ALEC meetings, including model bills, fact sheets, notes, minute, recording and presentations are public records and therefore have to be disclosed.
The outcome of the litigation could turn on how a court reads definitions in state law.
That law specifically says that all meetings of the Legislature and its committees are open to the public, though lawmakers can exempt themselves from requirements to post notices and agendas.
On a broader perspective, the law defines “meeting” as “any gathering … of a quorum of the members of a public body at which they discuss, propose or take legal action.” And it specifically includes “any deliberations by a quorum with respect to that action.”
But that, then, turns on what is “legal action.”
Here the law spells out it is “a collective decision, commitment or promise made by a public body.”