In the early August heat, nearly 200 Republican lawmakers gathered in an Austin, Texas, hotel to learn about what one panelist described as a “political adult bloodsport.” The matter at hand — gerrymandering — could lock in Republican power in the states for another decade if successfully carried out again in 2021.
The lawmakers were attending the 46th annual meeting of the American Legislative Exchange Council (ALEC), a powerful conservative group known for its secrecy.
Yet this year, parts of the meeting were a little less secret. Several reporters attended the session on gerrymandering and were able to shine light on the organization’s plans ahead of the upcoming redistricting cycle in 2021. Then, in October, journalist David Daley published a recording of the conference’s two-part session on gerrymandering in Slate. This unprecedented level of reporting on the panel uncovered the tactics conservatives plan to employ as they seek to maintain the Republican hold on state legislatures across the country in the crucial redistricting wars to come.
During the panel, experts stressed to state lawmakers the importance of maintaining their power during the next round of redistricting. Led by Phil King, the Texas House redistricting chair and one of ALEC’s most influential members, and Hans von Spakovsky, a conservative attorney and voter fraud alarmist, the speakers prepared attendees to be on the defensive and ready for litigation when they draw districts.
The conservative experts gave attendees a range of tips on how to approach gerrymandering, from legislative actions to legal preparedness. The panelists scoffed at the idea of appointing independent commissions in states to draw districts, a solution to partisan gerrymandering gaining traction in some states, instead urging state lawmakers to secure as much control over the process as possible. One panelist suggested Republican lawmakers work with black and Latino lawmakers to pack minority voters into districts, and another urged them to exclude noncitizens from the population numbers used to determine districts, a move that would dramatically redistribute power away from blue areas. Yet, ALEC also warned state lawmakers to be careful — to avoid using the word “gerrymander” and drawing lines too heavily based on race.
“You should not be discriminating on the basis of race, but engaging in partisanship because you want to benefit your political party is perfectly acceptable under the law,” von Spakovsky told attendees, per Slate’s transcript of the panel. Importantly, the Supreme Court has ruled that racial gerrymandering is illegal, but, in recent decisions, avoided setting limits on partisan gerrymandering.
ALEC is known for its focus on writing model bills of interest to its corporate members and disseminating them to conservative state lawmakers across the country. Yet the recording of the panel suggests that the group is now prioritizing legal preparedness as lawmakers ready themselves for the next round of redistricting following the 2020 census. The panelists seemed bolstered by a recent Supreme Court ruling but spooked by leaks from the files of a deceased conservative gerrymandering expert; they urged lawmakers to be careful to build lawsuit-proof politically gerrymandered maps and to be sure not to put anything in writing they wouldn’t want a judge to see.
It’s rare to have this kind of look inside an ALEC conference, as the most defining characteristic of the group is its secrecy. During the conference, von Spakovsky and others encouraged legislators to throw away their notes and to avoid discussing the issue of redistricting in emails that could be leaked or obtained by the press.
“I have no doubt that there were a million things happening behind closed doors that we didn’t know about,” said Anthony Gutierrez, executive director of Common Cause Texas, one of the groups leading the push against Republican gerrymandering efforts in that state.
Throughout the conference, there were various closed-door sessions that were open only to the lawmakers and representatives of the corporations that make up ALEC’s membership. David O’Brien, who attended on behalf of his voting rights nonprofit, said that police officers worked as security at the entrances and ALEC employees scanned his badge to enter certain portions of the hotel.
“There were always people checking to make sure that you were where you were supposed to be,” he told TPM.
“I just saw one level of the conference,” he added. “A lot of things could have gone on without even registering.”
Focused on power in the states
Founded in 1973 by Paul Weyrich and other conservative activists, ALEC is one of the most prominent and most secretive conservative organizations in the country. Weyrich saw himself and the organizations he co-founded, including The Heritage Foundation and the Moral Majority, as part of a movement. “We are different from previous generations of conservatives,” he once said. “We are no longer working to preserve the status quo. We are radicals, working to overturn the present power structure of this country.”
The organization describes itself as “the nation’s largest, non-partisan, individual public-private membership association of state legislators,” and while it’s formally a non-profit, tax-exempt group and not a lobbying organization, ALEC brings mostly conservative state lawmakers together with high-powered members of major corporations to discuss policy. This year’s meeting saw representatives of Chevron, Southwest Airlines, FedEx, UPS, and the AARP coming together with legislators from at least 39 states and members of the Trump 2020 campaign.
The group rose to prominence after the 2010 election, when Republicans picked up 680 seats in state houses and senate chambers. By 2013, Republicans had won trifecta control — both chambers of the legislature and the governor’s mansion — in more than two dozen states.
ALEC’s main goal is to pass legislation that is favorable to the companies that fund the vast majority of ALEC’s operations. Through “model” legislation, ALEC is able to effectively hand state legislators pre-written bills that often help the corporations that pay for membership. That strategy has proven successful, as ALEC has had a hand in shaping legislation in almost every policy area, from health care (opposing the Affordable Care Act) to criminal justice (bolstering private prisons). It’s also pushed for legislation to lower taxes, eliminate environmental regulations on corporations, squash unions, and protect corporations against lawsuits.
ALEC has had its fair share of controversy, including when it became clear that it had a hand in writing Florida’s “Stand Your Ground” law, which allowed Trayvon Martin’s killer to initially avoid arrest. The public backlash to ALEC’s involvement led to an exodus of many major corporations and a decision by members to temporarily refocus on economic issues. A few years later, a number of technology companies also cut ties with ALEC over concerns about the group’s stance on environmental issues. Former Google CEO Eric Schmidt said it would be leaving ALEC because “they’re just literally lying” about climate change.
While many influential, conservative organizations are focused on federal government, ALEC knows the key to power is at the state level. And no issue is as closely tied to maintaining power in state legislatures as redistricting.
A representative for ALEC did not respond to a request for comment about its intentions when it comes to redistricting in 2021. But the audio of the session at the annual conference, and previous leaks illustrating how the organization functions, show how ALEC plans to aggressively approach gerrymandering after the next census and to prepare lawmakers for litigation over their maps. That strategy involves making sure the lawmakers themselves have control over the process, especially in states with Democratic attorney generals, von Spakovsky said at the conference.
“Be sure that your redistricting bill has a provision in it that says that you, the legislature, have the ability to defend any lawsuits filed against your redistricting plan and that you will have control of that over and above the state attorney general,” he said.
A growing number of states have approved efforts to take redistricting power away from the elected legislature and give it to independent commissions. During the conference, experts expressed disdain for these bipartisan bodies, saying redistricting can never be independent. Instead, critics say, ALEC wants to ensure that Republican lawmakers who work with ALEC are the ones drawing districts. If they’re able to get reelected, ALEC will maintain its status as a dominant player in state legislatures.
“It just makes sense that they would be involved in redistricting and that they would be pushing their own agenda on this,” said Patrick Rodenbush, communications director with Eric Holder’s National Democratic Redistricting Committee. “Their job gets easier when they have a gerrymandered Republican legislature to push the bills through.”
Chris Lamar, redistricting counsel at the Campaign Legal Center, agreed that ALEC’s ultimate goal is to have more influence on state lawmakers than the lawmakers’ voters.
“They want people to listen to them and not their voters, and the way they do that is by creating these gerrymandered districts so legislators don’t have to address the concerns of their district,” he said. “They’re just addressing the concerns of these corporate interests.”
Empowered by the Court
In June, the U.S. Supreme Court ruled that federal courts do not have jurisdiction to strike down extreme partisan gerrymandered maps. Experts say that the ruling emboldened ALEC members who were drawing up plans to use census data in 2021 to craft districts that favor Republicans.
“I do think there’s an effort to make sure redistricting remains a politicized function, and I expect a lot of conversations are going on behind the scenes about how it’s essential to keep it as a politicized function if you’re going to remain in power,” said Michael Li, senior counsel for the Brennan Center for Justice’s democracy program.
The audio from ALEC’s conference revealed to the public for the first time the extent to which ALEC members plan to defend their maps in court following the Supreme Court ruling. Repeatedly, the panelists at the annual meeting warned lawmakers to destroy their notes and to prepare for inevitable court battles.
“You are going to be sued, let’s start with that,” panelist Cleta Mitchell, a prominent conservative activist and lawyer, said during the session, according to Slate’s transcript. “You’re going to be sued, and you need to prepare for that from this day forward.”
Farr repeated that warning word for word.
“You’re going to be sued,” he said, per the transcript. “And I know the lawyers that are going to handle the cases, I know the expert witnesses they’re going to use, and I’m kind of here as a doctor telling you that you might have cancer, and you better get some chemotherapy because if you don’t things aren’t going to turn out real well for you.”
Because of the threat of litigation, the panelists told lawmakers to be especially cautious and to appoint people to redistricting committees who are “studious,” “sharp” and prepared for court. They also suggested state lawmakers avoid rushing redistricting legislation or holding special sessions to jam through the approval of state lines.
“The more you take the high road in the legislative process, the better it’s going to look in court when you have to defend what you’ve done,” Farr said.
“Any fudging you do, you’re going to hear about it in court,” added Texas House Redistricting Chair Phil King, one of ALEC’s most influential members and a member of the board of directors.
Farr warned that Democrats are prepared to oppose partisan gerrymandering with lawyers and experts, and GOP lawmakers need to prepared to fight back.
The fight to maintain power
Before ALEC appeared interested in the courts’ role in redistricting, its efforts were focused more on state legislatures. In August 2018, ALEC first introduced and then adopted a model resolution declaring that state legislatures should maintain control of redistricting. In other words, partisan politicians should have the power to determine district lines without interference from the courts.
“[T]he intervention of state supreme courts to redistrict congressional district maps violate the fundamental right of the residents of a state to republican self-government,” the resolution states.
ALEC does not publicize which corporate members help draft or approve the language of its resolutions, so it’s not clear who pushed for this model bill. But reporting on the inner workings of the organization show that corporations are able to veto any proposal they do not support. Therefore, it’s likely that ALEC’s corporate members all supported — or at least didn’t oppose — the resolution before it was adopted.
Bryan Hughes, a Republican state senator in Texas who has been a member of ALEC since 2003, said he hasn’t seen the model bill, but would support legislation to keep redistricting power in the hands of legislators.
“The elected legislature — the people elected by the people — should be the ones drawing the lines,” he told TPM. “I’m not an expert, but based on what I’ve read and the research I’ve done, these independent commissions do not remove the politics. They just remove the transparency.”
Over at least 25 years, ALEC has introduced hundreds of model bills and resolutions that it encourages state lawmakers to pass in some form. ALEC boasts that over 1,000 of its model bills are introduced across the country every year. It also claims that one in every five become law.
Often, the core concepts of these bills are the same, but do not mimic ALEC’s model bills exactly. Yet lawmakers aren’t always so stealthy and have, on a number of occasions, introduced legislation that includes exact language from an ALEC model bill. In Wisconsin, for example, Republicans called a special session in 2015 to take up a “right to work” measure that resembled an ALEC model almost word-for-word.
Legislators are typically quiet about where the bill language originates and do not reveal which corporate interests are pushing for its passage.
Good government redistricting experts say they have not yet seen ALEC’s 2018 model resolution pop up in state legislatures, but it’s likely on the horizon. Already, ALEC appears to be involved in state-level fights to set up independent commissions to draw districts.
“One thing we’re watching is efforts to gut some of the redistricting reforms that have popped up across the country,” Li, of the Brennan Center, said.
In Missouri, for example, voters in 2018 approved in a landslide a ballot initiative that would empower an independent demographer to draw district lines. Almost immediately, the state legislature began working to roll back the changes, though the effort was ultimately unsuccessful. According to Sean Soendker Nicholson, who led the initiative to get redistricting reform on the ballot, conservative organizations would have little luck undoing reform in Missouri because any effort would have to go back to the voters for approval.
“What some politicians pushing those gerrymandered efforts haven’t wrapped their heads around is that voters really do hate gerrymandering,” he said.
Republicans have also challenged redistricting commissions in Michigan, where a redistricting-reform ballot amendment also passed in 2018. First, Fair Lines Michigan, which led a session on redistricting at ALEC’s 2017 conference, filed a lawsuit to keep the ballot initiative from appearing on the ballot. Then, the National Republican Redistricting Trust — the national counterpart to Eric Holder’s group, which has brought on former Wisconsin Governor and longtime ALEC ally Scott Walker as finance chair — filed a lawsuit calling the redistricting commission “blatantly unconstitutional.”
“It’s clear they’re going to throw everything possible at the wall and see what sticks because they recognize that redistricting is key to power,” Li, of the Brennan Center said.
At ALEC’s conference, experts seemed wary of independent commissions. North Carolina election lawyer Thomas Farr claimed that there’s “no such thing as independent redistricting commissioning” because someone always wins or loses, and von Spakovsky said Democrats are pushing for commissions because they believe it will benefit them.
Kathay Feng, national redistricting director for Washington, D.C.-based watchdog organization Common Cause said ALEC is likely scared of independent commissions or bipartisan processes, given that the reforms are spreading to states that aren’t traditionally Democratic, like Missouri, Michigan, Utah and Ohio.
“This sudden sharp right turn is in response to the five states in 2018, many of which were red and purple states, to adopt strong redistricting reforms,” she said.
In Texas, where almost one-third of the legislature are members of ALEC and where lawmakers have a history of drawing districts that disadvantage minority voters, advocates fear that if Republicans do well in 2020, the state could see redistricting reform that would help them maintain power for another decade.
“Certainly over the next decade, many of us in Texas are going to be continuing to work on trying to get an independent commission, and I’m sure we’ll continue to see ALEC designing legislation that will try to prevent that from happening by making it something only state legislatures can do,” Gutierrez, of Common Cause Texas, said.
Shrouded in secrecy
It’s difficult to know exactly how ALEC functions on the inside because the group’s activities are largely kept private. Its membership rolls are kept secret and corporations often do not disclose their membership status. Model legislation is adopted by nine secret task forces, where corporate and legislative members have equal voting power. These task forces do not release vote tallies or any record of their deliberations.
While ALEC likes to compare itself to the National Conference of State Legislators (NCSL), Feng said that’s far from the truth. NCSL’s meetings and operations are open to the public and the group facilitates debate between different parties and viewpoints, she said. ALEC, meanwhile, is almost exclusively Republicans working in secret.
That’s why in 2011, when the Center for Media and Democracy obtained through a whistleblower leak a trove of over 800 model bills and resolutions, organizations jumped in to help digest the information for the public. The Center for Media and Democracy’s ALEC Exposed website and The Nation’s analysis helped paint a picture of a group that for so long worked entirely in the dark.
Those documents shared the extent of ALEC’s intervention on a number of issues, from health and education to the expansion of voter ID laws and prison labor. They also revealed the large number of corporations with close ties to ALEC, including many of the groups in the Charles and David Koch’s network.
Since that leak, many of the major corporations previously tied to ALEC have tried to put some distance between themselves and the organization, like Walmart, Johnson & Johnson, Amazon, ExxonMobil, AT&T and Google. Meanwhile, ALEC has been able to go back to its method of working in secret, knowing that unless another disgruntled member leaks information, it’s unlikely to be shared publicly.
Sometimes, ALEC will allow reporters to get a taste of its work, like at its annual conference in August. But during the session on redistricting, panelists urged attendees to tear up their notes.
“Your notes from this conference and this workshop will probably be part of a discovery [in a future lawsuit],” Mitchell, the prominent conservative lawyer said. “So my advice is if you don’t want it turned over as part of discovery, you probably ought to get rid of it before you go home.”
Those comments came shortly after files from now deceased GOP gerrymandering mastermind Thomas Hofeller started to be released to the public as part of Common Cause’s federal litigation over North Carolina’s gerrymandered maps. After Hofeller died, his daughter discovered a trove of files that showed how Republicans factored in race when they drew state maps. Hofeller had also urged the Trump administration to add a citizenship question to the next U.S. census.
Hofeller’s death could mean that ALEC is looking to fill a hole in its line-up when it comes to gerrymandering experts, Feng said.
“I think what’s going to be interesting is they are probably scouting for the next generation of Thomas Hofeller’s to work in secrecy alongside legislators to rig the maps,” Feng told ThinkProgress in August.
ALEC’s secrecy is especially noteworthy when the topic of discussion is redistricting — another area that has long been shrouded in mystery.
The remarks from the panelists at ALEC’s August conference show that its goals in the next election cycle, building on Republican success during the last redistricting cycle in 2010, are ambitious, and could lock in gains for more than a decade. A successful GOP effort to redistrict in 2020 could lead to an unprecedented shift in state power further to the right.
But it would also be business as usual.
“ALEC is the way that redistricting is done,” Li said. “It’s always been closed door, it’s always been the proverbially smoke-filled room, and you have very little visibility into what is done. Maps are drawn in secret, they are sprung in voters at the last minute.”
Correction: This article originally misstated that police officers scanned attendees badges during the annual ALEC conference. The piece has been updated to reflect that ALEC employees scanned badges. We regret the error.
Kira Lerner is a reporter for The Appeal focused on criminal justice, voting, and civil rights issues.
Image at top: TPM Illustration / Getty Images
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